Third Circuit Weighs in on Retaliation Against Employees for Complaints of Discrimination

The Kengerski Case

The United State Court of Appeals for the Third Circuit recently issued an important employment law decision interpreting Title VII of the Federal Civil Rights Act of 1964 in the case of Kengerski v. Harper.

Kengerski filed a lawsuit alleging that he objected to racially offensive comments by a supervisor, and that he was fined in retaliation.  This is not a novel issue as Title VII, like New Jersey’s Law Against Discrimination, prohibits retaliation against employees who make complaints about discrimination. The novel question in this case was whether an employee could maintain a claim for retaliation when the complained of racially offensive conduct was not aimed at or about the employee himself.  The court ruled emphatically that he could.

 

Background

Kengerski was a corrections officer in Alleghany County, Pennsylvania  He submitted a complaint that one of his supervisors had called his biracial grand-niece a “monkey,” in addition to other racially offensive comments in text messages.  Seven months later he was fired.  His employer claimed it was because of his mishandling of an investigation; Kengerski claimed this was only pretext for retaliation.  Kengerski sued the warden and his employer, Alleghany County, Pennsylvania, claiming his termination was prohibited retaliation in violation of Title VII.  The trial judge dismissed Kengerski’s lawsuit on summary judgment, ruling that Kengerski could not maintain a claim for retaliation because he was white.  He appealed to the Third Circuit, which reversed the trial court’s decision and reinstated Kengerski’s lawsuit.

 

The Third Circuit’s Opinion

The main issue was whether Kengerski could show that he had an objectively reasonable belief that the supervisor’s remarks violated Title VII by creating a hostile work environment with her racially offensive remarks. The County argued that because Kengerski was white and the alleged statements were racially offensive to Black people (and indeed they were) he could not maintain a claim under Title VII.  The Third Circuit rejected this argument.  The Court explained that Kengerski could have had such a belief because Title VII prohibits discrimination against a person because of her race (or other protected characteristic).  The Court explained that “we agree… that associational discrimination is well grounded in the text of Title VII. In a practical sense, the name is a misnomer because, when you discriminate against an employee because of his association with someone of a different race, you are in effect discriminating against him ‘because of [his own] race’.”

And while the employee must reasonably believe that the conduct created a hostile work environment, Rejecting the County’s arguments and the trial court’s reasons for summary judgment. The court explained:

We disagree. Title VII protects all employees from retaliation when they reasonably believe that behavior at their work violates the statute and they make a good-faith complaint. As relevant here, harassment against an employee because he associates with a person of another race, such as a family member, may violate Title VII by creating a hostile work environment. Because a reasonable person could believe that the Allegheny County Jail was a hostile work environment for Kengerski, we vacate the District Court’s grant of summary judgment.

 

Takeaways for New Jersey Employment Law

While the employee was a corrections officer in Pennsylvania suing under federal law, the opinion is important for New Jersey employment law.  First, Title VII applies to New Jersey employment law.  Second, the Third Circuit hears Federal appeals from New Jersey, along with Pennsylvania, Delaware and the United States Virgin Islands, so it is controlling on Federal cases in its jurisdiction.  Third, New Jersey courts look to Federal case law, particularly from the Third Circuit, for guidance in interpreting the New Jersey Law Against Discrimination.

Thus, the takeaway is that retaliation because of complaints of racial harassment are prohibited, and they are prohibited even if the harassment or discrimination is because of the race of the person the employee associates with, not their own.  The New Jersey Law Against Discrimination likewise prohibits retaliation because of reports or complaints of discrimination or illegal harassment, and is likely to follow the Third Circuit’s lead in holding that this applies to associational discrimination as well.

 

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