Fifth Circuit Continues to Sanction Blatant Retaliation by Employers

While the circuits remain split over what kinds of employer behavior constitutes actionable Title VII retaliation, the Fifth Circuit continues to adhere to the draconian rule that an employee must establish an "ultimate employment action," Mattern v. Eastman Kodak Co., 104 F.3d 702, 708 (5th Cir. 1997), such as termination or demotion. Short of that, anything goes. And we do mean anything.As an example, take a look at the Court's recent decision in Hockman vs. Westward Comm LLC, No. 03-41620 (5th Cir. Apr. 13, 2005). In this case, the employer responded to an EEOC charge of sex harassment by immediately separating the charging party (Hockman) from the alleged harasser. That is, the employer involuntarily transferred the charge-filer to a more remote facility, filled with "numerous spiders and webs, hundreds of cricket corpses, dead rats, maggots, old newspapers, thick dust, bodily fluids on the desk and wall and feces and urination." Retaliation? Not in the Fifth Circuit, "because it was a purely lateral move." She "retained the same pay, duties, and benefits [and] was reimbursed for her mileage from Grand Saline to Edgewood."Under the Court's reasoning, it wouldn't make any difference even if the supervisor announced over the loudspeakers his clear intent to retaliate against the plaintiff employee to make her an example for all those other employees that might think they have any rights in the workplace. The message from the Fifth Circuit is, unfortunately, equally clear: Employers may feel free to retaliate as much as they wish, so long as they don't cut an employee's pay.