Though he was not championed as a pro-worker choice for the most recent vacancy on the U.S. Supreme Court, workers and their advocates can take some hope from the fact that Justice Alito's final decision as a Circuit Court Justice came in a reversal of a summary judgment for an employer in a retaliation and sex discrimination case. (Jensen v. Potter Case No. 04-0478, 3rd Cir. 1/31/06). The decision brought the 3rd Circuit into the majority view regarding liability for retaliatory harassment based on the actions of a coworkers. Justice Alito's last words before joining the SCOTUS:
As an abstract matter, retaliation against a person based on the person's complaint about sexual harassment is not necessarily discrimination based on the person's sex. If the individuals carrying out the harassment would have carried out a similar campaign regardless of the sex of the person making the complaint, the harassment, while actionable as illegal retaliation, would not also be actionable as discrimination based on sex.
In reality, however, when a woman who complains about sexual harassment is thereafter subjected to harassment based on that complaint, a claim that the harassment constituted sex discrimination (because a man who made such a complaint would not have been subjected to similar harassment) will almost always present a question that must be presented to the trier of fact.
In such a situation, the evidence will almost always be sufficient to give rise to a reasonable inference that the harassment would not have occurred if the person making the complaint were a man. The difficult task of determining whether to draw such an inference in a particular case is best left to trial.
We remain hopeful, particularly for that part of our practice which does not pertain to the wage and hour law, and we are especially hopeful that this holding bodes well for the employees in a pending Title VII case (White v. Burlington Northern & Santa Fe Railway Co. (6th Cir. 2004) 364 F.3d 789, that the SCOTUS agreed to review last year. The issue in White is the degree of injury an employer's conduct must inflict to constitute an "adverse employment action" in a retaliation case.