Jottings By An Employer's Lawyer

Tuesday, January 31, 2006

Jeopardy Category: Sexual Harassment, $500 Answer: “Because I didn’t.”

Question: What's not a good answer to give for why you didn't move a female employee who has been complaining that she has been the subject of derogatory remarks by her co-employees for 19 months, after her complaint of sexual harassment by a supervisor got him fired?

And the result, at least partially, of that answer? Summary judgment for the employer in a retaliation and sex discrimination claim is reversed. Jensen v. Potter (3rd Cir. 1/31/06) [pdf].

In doing so the 3rd Circuit for the first time answered a question that has split the circuits -- is there a cause of action for retaliatory harassment based on the actions of coworkers? The Court, perhaps foreshadowing a clarification of the "adverse employment action" coming from the Supreme Court later this term, agreeing with what it called the "majority approach," finds there is.

And then for icing on the cake for the employee, the Court also reversed the summary judgment on the sex discrimination claim as well. In a very pro-employee statement, the Court found:
In reality, however, when a woman who complains about sexual harassment is thereafter subjected to harassment based on that complaint, a claim that the harassment constituted sex discrimination (because a man who made such a complaint would not have been subjected to similar harassment) will almost always present a question that must be presented to the trier of fact. In such a situation, the evidence will almost always be sufficient to give rise to a reasonable inference that the harassment would not have occurred if the person making the complaint were a man. The difficult task of determining whether to draw such an inference in a particular case is best left to trial. [emphasis added]
Given the furor of the last three months, or even the spectacle of the last two days, not at all what you would have expected of Judge, now Justice, Alito's final words on the 3rd Circuit.

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