South-Western Legal Studies in Business

Harassment in Retaliation for Title VII Complaint Creates Basis for Claim
Description

Appeals court held that where an employee is subject to harassment in retaliation for a previous claim of discrimination, a hostile work environment claim may exist even if there is no demotion or dismissal.

Topic

Employment Discrimination

Key Words

Hostile Work Environment; Retaliatory Harassment

C A S E   S U M M A R Y
Facts

Jensen's supervisor called her one weekend and said he wanted to have sex with her. She said no and reported the incident to their manager. Eventually, the supervisor who made the proposition was fired. Jensen was given a new assignment that was physically more demanding, and she was subject to crude remarks and other bad behavior by co-workers in the new work unit. It was made clear that they did not like the fact that her action got her former supervisor fired. Her car was vandalized. Complaining about the treatment got no results. The treatment continued for 19 months, during which time her health worsened. She sued for sex discrimination based on retaliation. The district court dismissed the suit, holding that she had not suffered retaliation in the form of a demotion or termination. Jensen appealed.

Decision

Reversed and remanded. Retaliatory harassment which is severe and pervasive enough to create a hostile work environment is cognizable as a retaliatory adverse employment action. To prevail on a claim of retaliatory harassment, an employee must show that: 1) she suffered intentional discrimination because of her protected activity; 2) the discrimination was severe or pervasive; 3) the discrimination detrimentally affected her; 4) it would have detrimentally affected a reasonable person in like circumstances; and 5) a basis for employer liability is present. If supervisors create the hostile environment, the employer is strictly liable. When co-workers are the perpetrators of creating a hostile work environment, the plaintiff must prove employer liability using traditional agency principles.

Citation

Jensen v. Potter, 435 F.3d 444 (3rd Cir., 2006)

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