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Conference Call is prepared by the law firms Akin Gump Strauss Hauer & Feld and Howe & Russell, which together publish the Supreme Court weblog. Tom Goldstein, who is the head of Supreme Court litigation for Akin Gump, selects the petitions from the docket of non-pauper petitions. Various attorneys for the firms then prepare summaries of the cases. If either firm is involved in a case mentioned in this column, that fact will be disclosed. As the Declaration of Independence explains, there are some truths that we hold to be self-evident � that all men (and women) are created equal and that the arrival of the cherry blossoms will be accompanied by tourists who stand on the left side of the Metro escalator, for example. Many Americans would likely also regard it as self-evident that an employee who complains about a racially charged remark cannot be fired in retaliation for his complaint. In its private conference on Friday, the Supreme Court will consider whether the latter proposition is indeed self-evident when it considers the petition for certiorari in 06-1086, Jordan v. Alternative Resources Corp. In October 2002, petitioner Robert Jordan was watching a news report on the capture of the two Washington-area snipers with a co-worker, Jay Farjah, at an IBM work site in Maryland. Farjah made a crude racial slur regarding the snipers, who were African-American, in the presence of Jordan, who is also African-American. Offended, Jordan reported the slur to both IBM management and supervisors at Alternative Resources Corp., which employed him jointly with IBM. Over the next month, his IBM supervisors changed Jordan’s work schedule and gave him additional assignments; an ARC manager eventually fired him. Jordan filed suit under Title VII of the Civil Rights Act of 1964, alleging that he was fired in retaliation for his complaints. The district court dismissed his suit for failure to state a claim, holding that IBM and ARC could not be liable for retaliation because Farjah’s racial slur did not constitute the kind of unlawful employment practice prohibited by Title VII. On appeal, the Fourth Circuit affirmed. The court began by explaining that Title VII prohibits only retaliation against employees who have opposed an employment practice that the employee reasonably believes is unlawful. “Unlawful employment practices” include a hostile work environment, which “generally result[s] only after an accumulation of discrete instances of harassment.” Distinguishing between “an isolated racial slur, which is always and everywhere inappropriate, and the sort of severe or pervasive conduct that creates a hostile work environment,” the panel majority held that no objectively reasonable person could have believed that a hostile work environment either existed or was likely to occur in Jordan’s workplace: “[T]he mere fact that one’s coworker has revealed himself to be racist is not enough to support an objectively reasonable conclusion that the workplace has likewise become racist.” The majority also affirmed the district court’s dismissal of Jordan’s separate race-discrimination claim under 42 U.S.C. � 1981, holding that the facts set out in his complaint did not support his conclusion that IBM and ARC violated Section 1981 because race was a motivating factor in his termination. Judge Robert King filed a dissenting opinion. In his view, the Supreme Court’s opinions in Burlington Industries v. Ellerth and Faragher v. City of Boca Raton, which created an affirmative defense for employers when employees fail to report racially motivated conduct, effectively imposed “a duty on an employee to report harassing and offensive conduct to his employer,” thereby advancing “Title VII’s ‘primary objective’ of avoiding harm, rather than redressing it.” King construed the court’s Title VII jurisprudence as making it “clear that employees are protected . . . from employer retaliation if they oppose conduct that, if repeated, could amount to a hostile work environment.” By a 5-5 vote, the Court of Appeals denied rehearing en banc (and the panel opinion thus stood). Again dissenting, King wrote that Jordan’s contentions have “substantial merit . . . warrant[ing] serious consideration by the Supreme Court.” Represented by Stephen Chertkof of Washington’s Heller, Huron, Chertkof, Lerner, Simon & Salzman, Jordan filed a petition seeking Supreme Court review of the Fourth Circuit’s decision. Echoing King’s dissent and amicus briefs filed by the Equal Employment Opportunity Commission in the Fourth Circuit, Jordan contends that the decision below creates a Catch-22 for an employee who experiences racially harassing conduct: If he reports that conduct before it escalates to what a reasonable person would regard as a hostile work environment, the employer can freely retaliate against him. If, on the other hand, he waits until a hostile work environment clearly exists to complain, he loses his right to a judicial remedy because the employer can raise the affirmative defense that it had not previously been aware of the harassment. Such a result, Jordan asserts, is contrary not only to the court’s decisions in Ellerth and Faragher but also to the court’s 2006 opinion in Burlington Northern & Santa Fe Railway v. White, in which the court reiterated that Title VII’s anti-retaliation provision must be construed broadly. Opposing certiorari, IBM and ARC � represented by William Sammons of Baltimore’s Tydings & Rosenberg � contend that Supreme Court review is not warranted because the standard applied by the Fourth Circuit � i.e., whether Jordan had an objectively reasonable belief that he was complaining about a hostile work environment � was consistent with the standard applied by each of the other circuits. Moreover, they point out, in the 2001 case Clark County School District v. Breeden, the Supreme Court rejected a retaliation claim based on its conclusion that “[n]o reasonable person could have believed that the single incident [at issue] violated Title VII.” Nor, IBM and ARC continue, is the Fourth Circuit’s opinion inconsistent with Supreme Court precedent in cases such as Ellerth, Faragher and White. Rather, they explain, Jordan is simply attempting to mix apples � here, the requirement that an employee have an objectively reasonable belief that an unlawful employment practice such as a hostile work environment has occurred � with oranges � i.e., the requirement that employees wanting to preserve their right to sue timely bring complaints to their employer’s attention. Finally, they posit that the alleged importance of the question presented is belied by the fact that, since the court’s decision in Ellerth nine years ago, there has apparently been no other case presenting the Catch-22 about which Jordan complains. Jordan also urges the court to review the Fourth Circuit’s holding that his Section 1981 claim was properly dismissed. In his view, the panel’s holding conflicts with Swierkiewicz v. Sorema N.A., in which the court held that a plaintiff who alleged that an adverse employment action was taken “on account of” a prohibited action had stated a claim on which relief could be granted. IBM and ARC retort that Jordan has “simply mischaracterize[d]” the Fourth Circuit’s holding. They explain that, as required by Swierkiewicz, the panel below reviewed Jordan’s entire complaint; it merely concluded that “the specific facts alleged did not support, and in fact tended to dispute, the general race-based allegation.” The Supreme Court may announce whether it will hear the case as early as Monday.

Amy Howe

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