by Michael Fox
While on the national scene the Supreme Court left dangling the question of whether the refusal to re-hire a drug user could be successfully attacked under a disparate impact theory, the 3rd Circuit was predicting that such a theory would be sufficient to state a cause of action for a sexual harassment hostile environment case under the New Jersey Law Against Discrimination. In Thomas v. Town of Hammonton (3rd Cir. 12/4/03) [pdf] it reversed summary judgment against a police dispatcher trainee who had been treated as a part of a class of two, to a series of sexually explicit comments, including portions of 911 tapes with sexual connotations. (Incidentally confirming some 'urban myths' about the types of injuries seen in hospital emergency rooms involving household appliances.) In the money quote, the Court said:
Based upon the rationale of Lehmann, we would expect the Supreme Court of New Jersey to hold that a sex-oriented employment environment that has a disparate impact on reasonable women violates the LAD. Lehmann, 626 A.2d at 454 (acknowledging that intent to discriminate is not necessary and that there is a distinction between an environment that a reasonable man would consider hostile and one that a reasonable woman would consider hostile). It would be permissible, we believe, for a trier of fact to conclude that the environment created by Howard was 'qualitatively different' for a woman than for a man.
On the brighter side for employers, the Court also dealt with the perennial problem of whether timing alone will serve as a sufficient basis for causation in a retaliation case. Here, a 3 week period taken in the context of other developments did not. This was the Court's standard:
We have recognized, to be sure, that a suggestive temporal proximity between the protected activity and the alleged retaliatory action can be probative of causation. See Rauser v. Horn, 241 F.3d 330, 334 (3d Cir. 2001). However, [e]ven if timing alone could ever be sufficient to establish a causal link, . . . the timing of the alleged retaliatory action must be unusually suggestive of retaliatory motive before a causal link will be inferred. Estate of Smith v. Marasco, 318 F.3d 497, 512 (3d Cir. 2003) (internal quotations omitted; alterations in original); see also Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989) (two days between protected activity and alleged retaliation sufficient to draw inference of causal connection). In cases such as this one where the temporal proximity is not so close as to be unduly suggestive, we have recognized that timing plus other evidence may be an appropriate test . . . . Marasco, 318 F.3d at 513 (internal quotations omitted).