                           [J-98-2019] [MO: Dougherty, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                  MIDDLE DISTRICT


 KAREN HARRISON,                                  :   No. 51 MAP 2019
                                                  :
                      Appellee                    :   Appeal from the Order of the
                                                  :   Superior Court at No. 365 EDA 2018
                                                  :   dated December 12, 2018 Affirming
               v.                                 :   in Part and Vacating in Part the
                                                  :   Order of the Lehigh County Court of
                                                  :   Common Pleas, Civil Division, at
 HEALTH NETWORK LABORATORIES                      :   No. 2016-C-1469 dated December
 LIMITED PARTNERSHIPS, AND LEHIGH                 :   19, 2017 and Remanding
 VALLEY HEALTH NETWORK, INC.,                     :
                                                  :   ARGUED: November 19, 2019
                      Appellants                  :


                                   DISSENTING OPINION


JUSTICE DONOHUE                                                  DECIDED: June 16, 2020

       By its express terms, the Pennsylvania Human Relations Act (“PHRA”), 43 P.S.

§§ 951—959, is the exclusive state law remedy for a claim based on retaliatory discharge

for opposing discrimination in the workplace.         See 43 P.S. § 955(d) (prohibiting

discrimination against “any individual because such individual has opposed any practice

forbidden by [the PHRA]”). This is precisely the claim Harrison asserts. Therefore, she

is precluded from proceeding in court under the Pennsylvania Whistleblower Law, 43 P.S.

§§ 1421—1427, and the trial court properly dismissed the claim. Accordingly, with all due

respect to the Majority, I dissent because, in my view, the Majority misinterprets the PHRA

in reaching its contrary conclusion.

       The PHRA is a comprehensive statute specifically designed to deal with

discriminatory practices. To that end, it declares, inter alia, that “[t]he opportunity for an
individual to obtain employment for which he is qualified . . . without discrimination

because of race, color, familial status, religious creed, ancestry, handicap or disability,

age, sex, [or] national origin . . . is hereby recognized as and declared to be a civil right

which shall be enforceable as set forth in this act.” 43 P.S. § 953. As referenced, the

PHRA specifically prohibits discrimination against an individual like Harrison because she

has opposed discrimination in the work place. Id. at § 955(d).

       At the heart of this appeal is the PHRA savings clause, which provides that:

       nothing contained in this act shall be deemed to repeal or supersede any of
       the provisions of any existing or hereafter adopted municipal ordinance,
       municipal charter or of any law of this Commonwealth relating to
       discrimination because of race, color, familial status, religious creed,
       ancestry, age, sex, national origin or handicap or disability, but as to
       acts declared unlawful by section five of this act [relating to unlawful
       discriminatory practices] the procedure herein provided shall, when
       invoked, be exclusive and the final determination therein shall exclude any
       other action, civil or criminal, based on the same grievance of the complaint
       concerned. If the complaint institutes any action based on such grievance
       without resorting to the procedure provided in this act, such complainant
       may not subsequently resort to the procedure herein.

43 P.S. § 962(b) (emphasis supplied).

       No one disputes that Harrison’s claim is cognizable under the PHRA or that the

PHRA provides her with an avenue of recourse. Moreover, the Majority, in part, correctly

recognizes that:

       where an aggrieved party chooses to pursue a remedial action under the
       PHRA, he or she is bound exclusively to the PHRA’s procedures, including
       the exhaustion of administrative remedies, and bound to the result;
       however, an aggrieved party may instead elect to pursue a remedy that
       exists under other municipal laws or laws of the Commonwealth and, by
       instituting such an alternative action, will then be precluded from restoring
       to the PHRA.

Maj. Op. at 14. What the Majority omits from this statement is that the other municipal

laws or statutes of the Commonwealth must “relat[e] to discrimination because of race,


                            [J-98-2019] [MO: Dougherty, J.] - 2
color, familial status, religious creed, ancestry, handicap or disability, age, sex, [or]

national origin.” 43 P.S. § 962(b). The Whistleblower Law does not.

       The Whistleblower Law is a general statute enacted as a “remedial measure

intended to enhance openness in government and compel the government’s compliance

with the law by protecting those who inform authorities of wrongdoing.” O’Rourke v. Dep’t

of Corrections, 778 A.2d 1194, 1202 (Pa. 2001) (citation omitted). In contrast to the

PHRA’s laser focus on the prohibition of and the provision of remedies for discrimination,

the Whistleblower Law is not related to1 the same subject matter. It is broad and general

anti-retaliation legislation enacted for the express purpose of:

       [p]roviding protection for employees who report a violation or suspected
       violation of State, local or Federal law, providing protection for employees
       who participate in hearings, investigations, legislative inquiries or court
       actions; and prescribing remedies and penalties.

Preamble, Act of Dec. 12, 1986, P.L. 1559, No. 169, Cl. 43, 43 P.S. §§ 1421–1428. While

the claim of Harrison may be coincidentally captured by the Whistleblower Law, that law

was clearly not enacted to prohibit discrimination or to provide the remedy for the violation

of the right to be free from discrimination, a civil right expressly declared to be enforceable

under the PHRA.




1  “Relate to” is defined as, inter alia, “to be connected with (someone or something); to
be about (someone or something).” Merriam Webster.com Dictionary, Merriam-Webster,
https://www.merriam-webster.com/dictionary/relate%20to. Accessed 20 Apr. 2020.
Hartman v. City of Allentown, 880 A.2d 737 (Pa. Cmmwth. 2005) (PHRA not intended to
be exclusive in the field of anti-discrimination as 962(b) makes clear that General
Assembly intended to preserve anti-discrimination ordinances from pre-emption). See
also SEPTA v. City of Philadelphia, 159 A3d 443 (Pa. 2017) (recognizing interplay
between PHRA and other laws “related to” discrimination and discussing local ordinance
in terms of the same subject matter as PHRA).


                            [J-98-2019] [MO: Dougherty, J.] - 3
      The fact that an employee claims that she was disciplined for bringing a

discriminatory policy or practice to light does not provide an end-around to the PHRA

through the Whistleblower Law. By the Majority’s reading of Section 962(b), any claim of

discrimination that can be shoehorned into a statute or law not specifically intended to

prevent discrimination can be brought under the auspices of the other statute or law. But

according to Section 962(b), it is the purpose of the statute, not the nature of the claim,

that permits an opt-out of the procedures and relief provided by the PHRA.

      Harrison filed a retaliation claim after Health Network allegedly discharged her

because she opposed race-based discriminatory practices against another employee in

their workplace.   43 P.S. § 953. Because Harrison’s claim is based on workplace

discrimination and the Whistleblower Law is not an anti-discrimination statute, the PHRA

provides the exclusive remedy. Hence, I would reverse the Superior Court’s ruling.




                           [J-98-2019] [MO: Dougherty, J.] - 4
