January 1, 1900

by Tiffanie C. Benfer

Recent decisions by the U.S. Supreme Court and the United States Court of Appeals for the Third Circuit have made it easier for employ­ees to bring a retaliation claim against an employer in Pennsylvania and New Jersey. In fact, an employer that does not properly handle a claim of discrim­ination or sexual harassment may find itself liable for retaliation even if the underlying claim is without merit.

Retaliation Can Create a Claim Despite a Meritless Discrimination Claim

Title VII of the 1964 Civil Rights Act makes it unlawful for an employer to retaliate against an employee who has “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” under Title VII. Some acts plainly constitute retaliation, including, hiring, firing, failing to promote, reassignment with significantly different responsibil­ities, or making a significant change in the employee’s benefits. However, the Circuit Courts of Appeals have issued conflicting interpretations of what other actions by an employer constitute retaliation under Title VII.

The federal courts, for example, are split on whether an employee can bring a retaliation claim based upon a hostile work environment. In Jensen v. Potter, an opinion authored by Justice (then Judge) Alito just prior to his appointment to the Supreme Court, the Third Circuit concluded that an employee can establish a retaliation claim based upon a hostile work environment. In doing so, the Third Circuit joined the majority holding that the Civil Rights Act prohibits severe or pervasive retaliatory harassment by the employer.

The Supreme Court recently expanded the scope of acts which will be considered retaliation in Burlington Northern & Santa Fe v. White. The Court concluded that the anti­retaliation provision forbids not only retaliatory actions that have an effect on the terms and conditions of the employment relationship, but may include retaliatory actions taken by an employer that cause an employee harm outside the workplace. The Supreme Court declared that all such actions are forbidden in order to achieve the objective of the anti­retaliation provision: to prevent harm to an individual who seeks a workplace in which he or she is not discriminated against because of his or her race, ethnicity, religion or gender.

In order to successfully bring a retaliation claim against an employer, an employee must establish that the employer’s actions would deter a reasonable employee from making or supporting a claim of discrimination or sexual harassment. The trier of fact shall consider the particular circum­stance in each case and determine whether such actions by the employer would deter a reasonable employee, similarly situated, from making or supporting a claim of discrimination or sexual harassment. Consequently, an employer’s actions could constitute retaliation in one case and not in another. For example, if an employee complains of sexual harassment and then the employer informs the employee that she must begin her work day one hour earlier, it may, depending upon other factors, be deemed an act of retaliation. A change in schedule could have a significant effect on an employee with small children and might be considered an act of retaliation to that employee. In contrast, a change in schedule may not necessarily be considered an act of retaliation for another employee. A jury will need to consider whether the specific facts show that the employer’s actions were retaliatory.

Even prior to these decisions, it was often easier for an employee to successfully bring a retaliation claim against an employer rather than a claim strictly based on discrimination. With this expanded reach of the law, employees will have an even easier time sustaining a claim of retaliation. The Washington Post recently reported that the Equal Employment Oppor­tunity Commission has experienced a surge in the number of retaliation cases after the Supreme Court’s decision in Burlington Northern & Santa Fe v. White.

Take Every Claim of Harassment Seriously

Whether you are an employer or an employee, these decisions concern you. To minimize the risk of a retaliation claim, an employer in Pennsylvania or New Jersey must be more vigilant of its own, and its managers’, actions after an employee makes or supports a claim of discrimination or sexual harassment. It is important that an employer is cognizant of the fact that even if it is found not to have discriminated against the employee, the employer can still be found responsible for retaliation.

As for an employee, if you have made or supported a claim of discrim­ination or sexual harassment and are subsequently subjected to any adverse consequences, whether at your place of employment or elsewhere, you may have a retaliation claim if such actions would deter a reasonable employee from making or supporting a claim of discrimination or sexual harassment. Actions that now may constitute retaliation include: an unfounded report to the local authorities about the employee made by the employer, routinely blocking an employee’s parking spot and defacing or destroying an employee’s personal property.

Despite the added challenges created by these recent decisions, one must keep in mind that the goal is to create a workplace free of unlawful discrimination, and one in which employees feel free to “secure or advance” their right not to be dis­criminated against.

Tiffanie C. Benferis an associate of the Employment & Labor Law Practice Group of Hill Wallack LLP in the Doylestown, Pennsylvania Office.