When a child faces discrimination, does the child’s right to sue depend on whether a parent takes prompt action, or may the child wait until adulthood and sue then? On March 10, 2020, in oral arguments before the Pennsylvania Supreme Court, Dave Berney, Esq., argued that the limitations period must stop for minors facing discrimination until they become adults and gain the legal capacity to sue.

The Court heard arguments on two questions in Nicole B. v. School District of Philadelphia: (1) whether Pennsylvania’s general purpose minority tolling statute, 42 Pa. C.S. § 5533(b)(i), applies to complaints filed with the Pennsylvania Human Relations Commission (PHRC); and (2) whether the Pennsylvania Human Relations Act (PHRA) itself, under 43 Pa.S. § 962(e), operates to toll the limitations period for minors.

In this case, a fourth-grader was the victim of discrimination, sexual harassment, and rape in school, facilitated by the school’s misconduct. But it took more than six months, the relevant time limit for adults, for a parent to file a PHRC complaint against the school district. Despite the language of Pennsylvania’s general purpose minority tolling statute—minors “shall have the same time for commencing an action after attaining majority as is allowed to others”—the school district argued that the PHRC complaint fell outside the scope of the statute’s protections. And, despite the language of the PHRA itself—allowing “equitable tolling”—the school district argued that minority tolling was outside the scope of that statute as well, leaving the child victim without legal recourse.

Mr. Berney argued for the child’s right to benefit from both the general purpose minority tolling statute and the PHRA’s equitable tolling provision. Relying on the text of both statutes, legislative intent, and longstanding principles of statutory construction, he argued that both statutes must be understood to protect the rights of minors facing discrimination in school.

With the rights of children in the Commonwealth at stake, Berney & Sang will post an update here when the Court issues its opinion.