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The 3d U.S. Circuit Court of Appeals has ruled that plaintiffs may sue under a theory of “retaliatory harassment,” and therefore need not show that the alleged retaliation they suffered had resulted in a firing or demotion. Jensen v. Potter, No. 04-4078. The opinion, written by Judge Samuel A. Alito Jr. and handed down on his final day on the circuit, also refused to draw a bright line between conduct that is sexually discriminatory and conduct that is retaliatory, holding instead that such questions hinge on the facts of the case and should therefore be decided by a jury. The 3d Circuit panel reversed a Pennsylvania federal judge’s dismissal of a postal worker’s discrimination and retaliation claims under Title VII of the 1964 Civil Rights Act. Alito said that “retaliatory harassment” is a valid theory, and that the alleged retaliatory conduct may also qualify as evidence in a companion claim of sex discrimination if the plaintiff can show that she was being targeted “because of” her sex. “[W]hen a woman who complains about sexual harassment is thereafter subjected to harassment based on that complaint, a claim that the harassment constituted sex discrimination . . . will almost always present a question that must be presented to the trier of fact,” Alito wrote. “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.” According to court papers, the suit filed by Anna M. Jensen, a letter carrier in the Kingston, Pa., post office, stemmed from an incident in September 2001, when her supervisor allegedly propositioned her. The suit says Jensen rejected the proposition and reported it to her branch manager the next day. Five days after her complaint, her supervisor was transferred. Following an investigation of the incident, the supervisor was fired in January 2002. But Jensen’s co-workers began to harass her for getting their former boss “in trouble.” The suit alleges that the insults and harassment continued for 19 months despite Jensen’s repeated complaints to her supervisors. Alito found that Jensen’s case presented a “threshold question” of law that has split the federal circuits: whether a retaliation claim may be predicated on a hostile work environment theory. Eight of the circuits hold that such “retaliatory harassment” claims are cognizable, while two-the 5th and 8th circuits-hold that they are not because retaliation claims require proof of some form of “ultimate employment decisions.” Alito followed the majority of the circuits in holding that “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.” Harassment is cognizable, Alito said, if the plaintiff is able to show that it was “severe or pervasive enough to create a hostile work environment.” In Jensen’s case, Alito said, the lower court was wrong to dismiss the suit because her allegation, when viewed in its totality, “tends to show that these seemingly unrelated incidents were components of an integrated pattern of retaliation.” Alito also found that Jensen had evidence of harassment that “a jury might well find severe or pervasive.” The “incidents’ severity and the insults’ frequency combine to raise a material question of fact as to whether retaliatory harassment ‘permeated’ the workplace and changed the terms or conditions of Jensen’s employment,” Alito wrote. In addition, Jensen had met the test for establishing employer liability because she is able to show that management knew or should have known about the harassment, but failed to take “prompt and adequate remedial action.”

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