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In a case of first impression, the 3rd U.S. Circuit Court of Appeals has recognized a cause of action for retaliatory harassment consistent with the other types of long-recognized harassment under Title VII. The case is notable not just for acknowledging a new cause of action but also for a modification of the test for determining harassing behavior as a matter of law. Jensen v. Potter was also in the final trilogy of cases decided by Justice Samuel A. Alito as a member of the appellate court. Anna Jensen was a letter carrier working in the Kingston, Pa., branch of the U.S. Postal Service. One morning in the fall of 2001, she received a call from her supervisor in which he requested that she leave work and come to his home so that they could engage in sexual relations. Jensen declined. She then phoned the branch manager and reported the incident. Jensen’s supervisor was transferred and, after an investigation over the following few months, was fired for his behavior. Shortly after reporting the phone call (and after her supervisor’s transfer), Jensen’s work area was moved from an interior office to the general work floor. From that moment on, Jensen was subjected to 19 months of offensive comments (averaging two to three per week), vandalism of her car and threatening behavior from co-workers, including one fellow carrier who repeatedly drove a cart at her in a manner intended to scare her. Jensen reported this behavior to the branch manager and requested that she be transferred. Incredibly, her requests were denied. Her manager appears not to have been prepared for questions about this nontransfer at his deposition, as he explained his refusal to move Jensen with a simple: “Because I didn’t.” During the 19 months of harassment, Jensen suffered both physical and psychological injuries that she attributed to her work environment. Only after the original branch manager was replaced were the harassers confronted by management (and the union). As reported by the court, the harassing behavior stopped after a meeting at which the men involved were directed to do so. Not surprisingly, Jensen sued under Title VII claiming harassment based upon her sex and upon retaliatory animus. The district court granted summary judgment in favor of the post office, and an appeal followed. The first issue addressed by the 3rd Circuit was whether Jensen had stated a viable claim for harassment based upon having engaged in protected activity under 42 U.S.C �2000e-3(a). The court observed that the majority of circuit courts addressing the issue had found that “the statute prohibits severe or pervasive retaliatory harassment.” However, a number of courts, most notably the 5th and 8th circuits, have held that �2000e-3(a) protects employees only with respect to “ultimate employment decisions” and therefore does not cover harassment. The 3rd Circuit has repeatedly found that retaliatory conduct violates Title VII when it alters the terms and conditions of employment or adversely affects his or her status as an employee. Illegal retaliatory conduct is not limited to “ultimate employment decisions.” As such, the court found that �2000e-3(a) could extend to harassment that did not result in a tangible employment action, such as demotion or termination. In considering whether the behavior by Jensen’s co-workers rose to the level of retaliation, the court re-cast the elements necessary to state such a claim as a matter of law. Specifically, in a number of cases, the 3rd Circuit had stated the plaintiff would need to establish a causal connection between the protected activity and the conduct in question — pervasive and regular harassment that both subjectively affected the victim and objectively would have affected a reasonable person under similar circumstances. In Jensen, the court re-stated the first element requiring that the plaintiff establish that “she suffered intentional discrimination because of her protected activity.” A footnote recognized that the difference in wording between “a causal connection” and “because of” was the proverbial “distinction without a difference.” Nevertheless, it can be anticipated that this revised wording will begin to appear in cases in this area. A more substantive shift was established in the second element, which the court modified from requiring that the harassment be “pervasive and regular” to that it be “severe or pervasive.” This formulation was patterned after that articulated by the Supreme Court in Suders. As is evident, by allowing for harassment to be either pervasive or severe, the 3rd Circuit is specifically recognizing the possibility that a single incident of harassment could, if severe enough, be actionable. The court then applied the harassment standard to the actions alleged. It found that Jensen’s co-workers had initially related their conduct directly to her complaints against her supervisor, which raised “an obvious inference of retaliatory animus.” Thus, while the court recognized that “many may suffer severe or pervasive harassment at work [for reasons] not proscribed by Title VII,” these initial comments “provide a window into [Jensen's co-workers'] thinking throughout the 19-month barrage of offensive comments.” Jensen was clearly upset by her environment, but the court found that in order to satisfy the standard of whether the behavior was objectively offensive, she was required to establish that the behavior was “severe or pervasive enough to alter the conditions of her employment and [to] create an abusive working environment.” In this regard, “the statute … does not mandate a happy workplace. Occasional insults, teasing or episodic instances of ridicule are not enough … [to] change the very nature of the plaintiff’s employment.” Nor does “the silent treatment,” however hurtful, rise to the level of harassment. Moreover, the court recognized that simply choosing sides between co-workers is “inevitable” and that, when charges of discrimination are made “sides will be chosen, lines will be drawn and those who were once the whistleblower’s friends may not be so friendly anymore.” However, “Title VII prohibits retaliation against the accused, not support for the accuser.” The “pounding regularity” of what the court found to be “retaliatory insults” raised a genuine issue as to whether the harassment endured by Jensen was “severe or pervasive.” Finally, the court addressed the liability of the post office for the behavior of Jensen’s co-workers. In this regard, Jensen needed to show that “management knew or should have known about the harassment but failed to take prompt and adequate remedial action.” While the post office’s eventual action was adequate in making the harassment stop, the fact that it took 19 months to occur was sufficient to create the possibility of liability. Jensen sends mixed signals to the employment law community. On one hand, the court recognized a new cause of action for retaliatory harassment under �2000e-3(a) and conclusively recognized that a single act of extreme severity could be harassing as a matter of law. On the other hand, the court acknowledged that a whistleblower’s workplace environment will inevitably become a colder place, and that workplace support for the accused would not necessarily be actionable. While a new cause of action may have been recognized, the test for all claims of retaliation and harassment may now be more stringent. Sid Steinberg is a partner in Post & Schell’s business law and litigation department. He concentrates his national litigation and consulting practice in the field of employment and employee relations law. Steinberg has lectured extensively on all aspects of employment law, including Title VII, the FMLA and the ADA.

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