Posted on January 31, 2006 3:56 AM by
Shanti Atkins
Samuel Alito was sworn in as an Associate Justice for the US Supreme Court today – the same day he authored his decision for the Third Circuit in Jensen. Jensen expands employer’s potentially liability for “retaliatory harassment.”
In Jensen, a letter carrier with the Kingston, PA branch of the US Post office complained to management that her supervisor was sexually harassing her. The supervisor was fired, and Jensen was moved into the supervisor’s former workstation. That’s when the nasty co-worker behavior began, including threats, obscenities and vandalism. To intensify the intimidation, some employees even drove their U-Carts directly at her, apparently at high speeds, in a show of support for their former boss. (That’s loyalty taken to disturbing extremes.)
Why is the case important?
Noting the consistency between the anti-retaliation and anti-discrimination provisions of Title VII, the Third Circuit held that the kind of retaliatory harassment experienced by Jensen, can by itself, be an “adverse employment action” under Title VII. Since harassment can be severe or pervasive enough to alter the terms or conditions of employment under the anti-discrimination provision of Title VII, the same must be true under Title VII's anti-retaliation provision.
The Third Circuit joins the First, Second, Fourth, Sixth, Seventh, Ninth and Tenth Circuits in its view that retaliatory harassment can rise to the level of an adverse employment action. The opposing minority in the Fifth and Eighth Circuits limit the anti-retaliatory provision of Title VII to prevent “ultimate employment decisions,” vs. the type of conduct experienced by the plaintiff in the Jensen case.
At ELT, we’ve found very few managers really understand the concept of retaliation, and how it’s separate and distinct from underlying claims of harassment. It is critical that harassment training programs give strong treatment to the issue of retaliation – both subtle and overt. (Retaliation content is actually required under California’s AB 1825 training mandate.)
These are complex issues for your supervisors to digest. Putting them into context, through excellent situational training, is the best way to bridge the gap.
Now with Alito on the bench, let’s see what happens with the hotly anticipated retaliation decision expected from the US Supreme Court in Burlington Northern. The court accepted review of Burlington on Dec 5, 2005. It could drastically increase employer liability for retaliation claims. Stay tuned …