Alito: Retaliation claim may be based on hostile work environment.

In what is perhaps Justice Alito's final opinion as a judge on the Third Circuit Court of Appeals, he writes for the majority in holding that a Title VII retaliation claim may be predicated upon a hostile work environment.

Alito writes:

[W]hen a woman who complains about sexual harassment is ... subjected to harassment based on [a previous] 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.

Here is the opinion: Jensen v. Potter, No. 04-4078 (3d Cir., Jan. 31, 2006).

The Third Circuit joins the majority of circuits in its holding with regards to harassment forming a cognizable retaliation claim. A minority of the circuits have taken the position that such claim exists only when the employer took an ultimate employment action, such as a firing.

The Jensen opinion may give some indication of how Justice Alito will rule in White v. Burlington Northern & Santa Fe Railway Co., which the Supreme Court agreed to hear last month. The case, out of the Sixth Circuit, presents a similar question. We wrote previously about White here.

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