An Employment Law Blog dedicated to Western Pennsylvania? Why?
That is what quite a few of my colleagues, clients and friends have repeated during the past several weeks when I considered starting a blog addressing this highly fascinating, and also highly complex, area of the law. But perhaps the right question is "Why Not?–especially one dedicated to examining employment, labor and civil rights in Western Pennsylvania from the employee’s perspective
For the past 23 years I have practiced employment law in Western Pennsylvania during what could only be, to quote Charles Dickens: "the best of times and the worst of times."
To be sure, it has been the best of times as employment rights expanded in the late 1980s and early 1990s with passage of new laws protecting disabled workers; employees with family responsibilities, and pregnant mothers.
It has been the worst of times when appointment of numerous pro-employer judges both locally and nationally have slowly eroded employee rights. This erosion happens, not overtly, but by day-to-day incorrect dismissal of employment cases on summary judgment; increasing the pleading requirements of employment cases; facilitating forced arbitration of employee’s claims and by a judicial attitude that characterizes employment cases as less than desirable because they often do not involve "big damages." Practicing employment law in Western Pennsylvania during the past two decades could best be characterized as holding back the tide. It has been fighting a rear guard action to maintain the hard fought gains in an era of retrenchment. During that time Congress expanded employee protection in a number of areas. The passage of the Americans with Disabilities Act in 1990, the amendment of Title VII of the Civil Rights Act with the Civil Rights Act of 1991, and passage of the Family & Medical Leave Act in 1993 expanded the rights of employees and the remedies available to them when employers trampled on those rights.
But at the same time, Pennsylvania state and federal courts narrowly interpreted employee rights, and created presumptions and doctrines making it more difficult to prove discrimination. Thus, the practice of employment law in Pittsburgh often has necessarily been measured by "defending the castle," rather than gaining new ground.
What this has created among the employment bar is what I call a timidity of expectations--and a culture that feeds on this timidity. Over and over, in reported decisions after reported decision, evidence shows employment lawyers fail to win because they fear to lose.
As a local federal judge once told me: "you would be surprised how unaggressive many employment lawyers have become. They do not put the time and effort required into developing the facts necessary to advance their client’s case; they do not challenge employer’s objections to legitimate discovery requests, and they do not adequately respond to dispositive motions. Then they whine when we grant summary judgment because that evidence is not there."
Couple this with an employment defense bar that has become increasingly aggressive in defending employment claims and employees often are put into a situation akin to sending out a three-toed sloth to seize turf from a wolverine, as the late Hunter Thompson put it.
So, this Western Pennsylvania Employment Law Blog hopefully will examine--from the employee’s perspective--the scope and direction of employment law in this part of the state and, in the U.S. Court of Appeals for the Third Circuit; the Pennsylvania Supreme Court and intermediate appellate courts. From time to time we also will examine what is happening in employment law in Philadelphia, and in the midsection of Pennsylvania and in Ohio.
We will discuss the Western Pennsylvania employment cases that are successful; the ones that fail; and the ones just recently filed.
We will look at what works, and why. We will examine what doesn’t work and why not. Hopefully we will offer some perspective, suggestions and, yes, critique of tactics and strategy. We hope this Blog also will provide non-lawyers with solid information to help them understand this highly interesting, but also highly complex area known as employment law.