The U.S. Third Circuit Court of Appeals has joined other circuits in holding that “hostile environment” retaliation claims are covered under Title VII of the Civil Rights Act of 1964, as amended. Jensen v. Potter, 3d Cir. No. 04-4078 (1/31/06). The court agreed with the majority of the circuits in reviving the claims of a postal worker who alleged that she was abused by her coworkers after complaining about sexual harassment by her supervisor. Now-Supreme Court Justice Samuel A. Alioto, Jr. wrote the unanimous opinion which found that harassment that is severe or pervasive enough to create a hostile work environment is actionable when resulting from reprisal for prior protected EEO activity.

In this case there was evidence that after plaintiff reported sexual harassment by her supervisor, he was then transferred and ultimately terminated. However, she was relocated to his prior work station where she was subjected to a 19-month barrage of offensive comments, physical threats, and damage to her car in her employer’s parking lot. The Postal Service’s failure to take prompt action would support a finding of employer liability as it refused to move the plaintiff’s work station although another work station was available. There was also evidence of sex discrimination which would require a jury trial for liability and damages as plaintiff suffered panic attacks, took stress-related sick leave, and went to the emergency room for asthma.

The court wrote that the standard of proof for a retaliatory hostile work environment is the same as for a discriminatory hostile work environment: 1. plaintiff suffered intentional bias because of her protected EEO activity; 2. it was severe or pervasive; 3. it detrimentally affected her; 4. it would have detrimentally affected a reasonable person; and 5. a basis exists for imposing liability on her employer. For the employer to escape liability, it must show that it responded both adequately and promptly once it learned of the harassment. Because of the 19-month delay, the court could not “deem the Postal Service’s response prompt and adequate as a matter of law.” The court went on to note that while retaliation against a person based upon sexual harassment is not necessarily sex discrimination, when the complainant is a woman, the reality is that it almost always constitutes sex discrimination as well.

The importance of this case is that it shows that once again reprisal for filing a discrimination complaint is unfortunately not uncommon. However, often it is easier to prove retaliation than discrimination, especially when it occurs shortly after the employee has engaged in protected EEO activity by filing a complaint, testifying in behalf of a coworker, etc. By amending his or her complaint after reprisal has occurred, an employee may be entitled to receive more compensatory damages as a result of the increased pain and suffering.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

The attorneys at Passman & Kaplan, P.C, are also the authors of The Federal Employees Legal Survival Guide, Second Edition, a comprehensive overview of federal employees’ legal rights. To order your copy, go to http://www.fedweek.com/pub/index.php