In one of Justice Samuel Alito’s last opinions for the Third U.S. Circuit Court of Appeals in Philadelphia before joining the U.S. Supreme Court, he provided us with a view of his reasoning process with respect to employment discrimination claims.
He authored an opinion in a case involving retaliation and hostile work environment claims. The opinion provides a good example of the reasoning process he’s likely to apply to cases before the Supreme Court. It gives us a good indication that he’s fairly mainstream and isn’t likely to try to lead the Court off onto a radical new agenda.
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Stage one — the discrimination complaint
Anna Jensen had a very good sexual harassment claim. Her supervisor, Carl Waters, explicitly asked her to have sex with him. She complained, and her employer handled the complaint appropriately by promptly transferring him and then investigating the charge.
After the investigation was completed, Waters was fired. So far, so good. The employer handled the situation effectively to protect Jensen from future harassment and seems to have protected itself from future liability at the same time.
Arguably, the employer didn’t have to fire Waters; after all, it was his first offense. But the employer didn’t want to take any chances. Unless an employee is good enough to make it worth the risk or unless there are disciplinary procedures that limit the severity of the discipline, many employers find that the safest and easiest thing to do is get rid of the offending employee.
Stage two — the aftermath: retaliation
Unfortunately, that wasn’t the end of Jensen’s problems. Consequently, it wasn’t the end of her employer’s problems, either. Over the next 19 months, some of Waters’ buddies started to give her a hard time, mostly insulting remarks that Jensen considered harassment and retaliation for reporting Waters.
Some of the remarks that came closest to the time of Waters’ firing expressly mentioned that Jensen had gotten him in trouble and therefore raised an obvious inference of retaliatory motive. The later comments, while offensive, didn’t refer to him or to his firing, so the employer argued that they didn’t provide support for a retaliation claim.
Under Judge Alito’s analysis, although the motive for the later comments was unclear if they were considered in isolation, they should be considered in conjunction with the earlier remarks, which were clearly motivated by retaliatory animus toward Jensen as the whistleblower. Consequently, all of the remarks could be considered in weighing the merits of her retaliation claim.
Jensen also claimed that an employee who had been friendly to her before she reported Waters had acted in a physically intimidating way toward her. Those acts weren’t expressly related to the charge against Waters, but Judge Alito held that the “temporal proximity” between her complaint and the hostile actions toward her was enough to support the conclusion that they were motivated by a desire to retaliate against her.
Finally, there was vandalism to Jensen’s car. The employer pointed out that the vandalism didn’t occur until a year after her complaint so it didn’t have either temporal proximity or any express connection to Waters’ dismissal. There were just random scratches on her automobile. Surely a year’s time is too great a gap for any causal connection between the vandalism and Jensen’s complaint.
Judge Alito agreed with the reasoning, but with a catch. He wrote that if the vandalism was all that had occurred, it’s almost inconceivable that a retaliatory motive could be reasonably inferred. He held, however, that the ongoing verbal abuse toward Jensen provided a sufficient link between the vandalism and the complaint about Waters to support Jensen’s claim.
Even though the vandal wasn’t identified as being from work, much less one of the men who had harassed her, because it occurred in the company parking lot and hadn’t happened before the complaint, he held that a jury could conclude reasonably that a link existed.
Note that each of the allegedly harassing actions is examined both separately as isolated incidents and as a whole so the court could consider their interrelatedness looking at each incident in the context of the others.
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Was harassment so severe and pervasive as to be unlawful?
Having found that there was a sufficient factual basis for linking the harassing conduct to the complaint Jensen made about Waters, Judge Alito then turned to another element she needed to prove — that it was severe or pervasive enough to be unlawful. He began his analysis of that issue by noting that the federal antidiscrimination statute, Title VII of the Civil Rights Act of 1964, “does not mandate a happy workplace.”
“Occasional insults, teasing or episodic instances of ridicule are not enough; they do not ‘permeate’ the workplace and change the very nature of the [individual’s] employment.” When one employee makes a charge against another, Judge Alito wrote, “sides will be chosen, lines will be drawn” — and friendships may suffer. But, he said, the statute doesn’t prohibit loyalty to the accused.
Judge Alito specifically rejected Jensen’s claim that getting the “silent treatment” was retaliatory, saying, “A cold shoulder can be hurtful, but it is not harassment.” Nor, he said, is it harassment to express an opinion that the accused shouldn’t have been disciplined.
But, and this is an important point, even though such statements aren’t harassment themselves, they may provide proof of the motive underlying other behavior that is harassing.
In the end, Judge Alito found the “pounding regularity” of retaliatory insults two or three times a week for 19 months combined with the physical intimidation and the vandalism to Jensen’s vehicle to be enough for a jury to conclude that retaliatory harassment “permeated” the workplace and changed the terms and conditions of her employment.
Eventually, a new supervisor effectively dealt with her retaliation claims. But 19 months hardly could be considered sufficiently prompt to protect the alleged victim or the employer.
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Lessons for employers
Keep the following in mind when dealing with harassment and discrimination claims:
- Effectively dealing with a sexual harassment complaint will protect you from a claim based on that harassment, but it still leaves the complaining employee open to retaliatory action and you exposed to potential retaliation charges.
- To be retaliatory, conduct doesn’t need to involve ultimate employment decisions such as dismissal; harassment by the alleged victim’s peers, if severe and pervasive and motivated by the original claim, can be retaliatory.
- Just like discrimination claims, retaliation claims require a prompt and effective response from you.
And what about Judge Alito?
This decision gives us more insight into the kind of justice we can expect Judge Alito to be. In some respects, it’s a surprise. He showed considerable deference to the jury system by overturning the trial judge, who had decided that the evidence couldn’t support a finding of retaliatory harassment.
Of course, without a careful reading of cases, the outcomes tell us next to nothing about the reasoning behind them, much less what to expect in the future. For the same reason, the scorecards that politicians wave around about judicial nominees ruling for or against employees or employers are virtually meaningless.
Justice Alito’s obvious reliance on precedent to reach and explain his rulings indicates that at least in this area of the law, he isn’t the reactionary champion that some conservatives may have hoped for and some liberals may have feared.
There seems good reason to expect that his opinions on the high court will reflect an evenhanded, analytical temperament. We’d all better hope so because he’s likely to be with us for a very long time.