2.01.2006

Third Circuit Weighs in on Split re Whether a Retaliation Claim Predicated upon a Hostile Work Environment Is Cognizable under 42 U.S.C. § 2000e-3(a)

Per the Third Circuit in Jensen v. Potter,--- F.3d ----, 2006 WL 224002 (3d Cir. Jan. 31, 2006):

The threshold question is whether a retaliation claim predicated upon a hostile work environment is cognizable under 42 U.S.C. § 2000e-3(a). Jensen says it is, the Postmaster says it isn't, and our sister circuits are split. A majority has held that the statute prohibits severe or pervasive retaliatory harassment. See Noviello v. City of Boston, 398 F.3d 76, 90 (1st Cir.2005); Von Gunten v. Maryland, 243 F.3d 858, 866 (4th Cir.2001); Ray v. Henderson, 217 F.3d 1234, 1244-45 (9th Cir.2000); Richardson v. N.Y. State Dep't of Corr. Serv., 180 F.3d 426, 446 (2d Cir.1999); Gunnell v. Utah Valley State Coll., 152 F.3d 1253, 1264 (10th Cir.1998); Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1456 (11th Cir.1998); Knox v. Indiana, 93 F.3d 1327, 1334-35 (7th Cir.1996); see also Morris v. Oldham County Fiscal Court, 201 F.3d 784, 791-92 & n.8 (6th Cir.2000) (holding that retaliatory harassment by a supervisor is actionable but "tak[ing] no position on whether an employer can be liable for coworkers' retaliatory harassment"). The Fifth and Eighth Circuits, however, limit § 2000e-3(a) to "ultimate employment decisions," and thus do not view harassment to be within the statute's reach. See Manning v. Metropolitan Life Ins. Co., 127 F.3d 686, 692 (8th Cir.1997); Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir.1997).

While our Court has never addressed the precise question, the logic of our decision in Robinson v. City of Pittsburgh, 120 F.3d 1286 (3d Cir.1997), points toward the majority approach. In Robinson, we held that "[r]etaliatory conduct other than discharge or refusal to rehire" violates Title VII when it "alters the employee's 'compensation, terms, conditions, or privileges of employment,' deprives him or her of 'employment opportunities', or 'adversely affect[s] his [or her] status as an employee." ' Id. at 1300 (quoting 42 U.S.C. § 2000e-2(a)) (alterations in original). Put another way, § 2000e-3(a) prohibits a quantum of discrimination coterminous with that prohibited by § 2000e-2(a). Id. at 1300-01; see also Von Gunten, 243 F.3d at 865 (rejecting the Fifth Circuit's ultimate employment decision standard because "conformity between the provisions of Title VII is to be preferred") (internal quotation omitted).

Under § 2000e-2(a), the cognizability of a discrimination claim founded upon a hostile work environment is well-established. See, e.g., Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (sex); Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986) (same); Caver v. City of Trenton, 420 F.3d 243, 262 (3d Cir.2005) (race); Cardenas v. Massey, 269 F.3d 251, 260 (3d Cir.2005) (national origin); Abramson v. William Paterson Coll. of New Jersey, 260 F.3d 265, 276-77 n.5 (3d Cir.2001) (religion). The statutory basis for these claims is the notion that discriminatory ridicule or abuse can so infect a workplace that it alters the terms or conditions of the plaintiff's employment. See Meritor, 477 U.S. at 67. If harassment can alter the terms or conditions of employment under § 2000e-2, then Robinson teaches that the same is true under § 2000e-3. See Robinson, 120 F.3d at 1300-01. We thus hold that both provisions can be offended by harassment that is severe or pervasive enough to create a hostile work environment.

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