TO:                  Business Leader

FROM:            John J. Ferriter, Esquire

DATE:             June 19, 2006

RE:                   Employment Discrimination Requirements for Retaliatory Harassment                     

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            The question of what is required to show actionable adverse employment actions has been the subject of ongoing discussion in employment discrimination cases.  Some courts require ultimate employment decisions, such as hiring or firing, while others allow actions short of ultimate decisions that nevertheless adversely affect the terms and conditions of employment.  In a recent case, the Federal Court held that retaliation claims under Title VII may be based on the creation of a hostile work environment, as well as on an ultimate decision.  Jensen v. Potter.  In so holding, the court joined the majority of the circuits which have addressed the issue.

            The court acknowledged that it is well established that the discrimination provision under Title VII recognizes claims founded on a hostile work environment.  It then reasoned that if harassment can alter the terms or conditions of employment under the discrimination provisions, the same should be true of the retaliation provision.

            The court went on to explain that, given the consistency between the two provisions, the usual hostile environment framework would also have to apply to a claim of retaliatory harassment, such that the plaintiff would have to satisfy the following elements: (1) that she suffered intentional discrimination because of her protected activity, that is, that there was a causal connection between her protected activity and the harassment; (2) that the harassment was severe or pervasive; (3) that the harassment detrimentally affected her; (4) that it would have detrimentally affected a reasonable person in like circumstances; and (5) that there is a basis for employer liability.

            The court concluded that the severe or pervasive standard is particularly crucial in the retaliation context, since some workplace strain is probably inevitable following a charge of discrimination by an employee.

            If you have any questions, please feel free to call Attorney Jack Ferriter at 413-535-4200 or email at jferriter@ferriter.com.