For those keeping score

Yesterday, the Third Circuit issued three opinions written by Judge (now Justice) Alito. In one of them, Jensen v. Potter, the court reinstated a female postal worker’s claims of sexual harassment and retaliation. The district court had tossed the case out on summary judgment, but a unanimous Third Circuit reversed. Thus, the alleged victim will have her day in court.
Alito’s opinion navigates the the various employment law issues raised with his characteristic sure and even hand. Perhaps the most controversial issue was whether it is unlawful retaliation to create a hostile work environment for an employee in response to that employee complaining about discrimination. The courts of appeals have split over this issue, with some holding that actionable retaliation occurs only if an employer makes an adverse employment decision (e.g. firing, demotion, cut in pay) in response to a complaint. Looking carefully at the statutory language and his court’s past rulings on related issues, Alito rejected that rule on the theory (correct in my view) that “discriminatory ridicule or abuse can so infect a workplace that it alters the terms or conditions of the plaintiff’s employment.” When such ridicule or abuse is dished out because an employee has complained about alleged discrimination, it constitutes unlawful retaliation.
UPDATE: In one of his first acts on the Supreme Court, Justice Alito voted with the liberal bloc not to overturn a stay of execution ordered by the Eighth Circuit of Appeals. Jonathan Adler at NRO’s Bench Memos doesn’t see much significance in this vote.


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