The United States Court of Appeals for the Third Circuit held on July 29, 2021, that a white employee’s lawsuit against his former employer for workplace retaliation under Title VII could move forward. This decision is especially notable because it is the first time the Third Circuit has issued a directive on race-based associational discrimination. In the case Kengerski v. Harper, No. 20-1307, 2021 WL 3199225 (3d Cir. July 29, 2021) the plaintiff employee alleges he was fired in retaliation for complaining about his supervisor’s racist remarks targeting his bi-racial grandniece and Black and Asian coworkers.
Title VII Retaliation vs. Harassment Claims
Title VII of the Civil Rights Act of 1964 is a federal law that prohibits employment discrimination and harassment based on race, color, religion, sex and national origin. It applies to all employers with fifteen or more employees, except for employees of the federal government, and it is enforced by the Equal Employment Opportunity Commission (EEOC). Under Title VII, an employer may not discriminate with regard to any term, condition or privilege of employment, including recruiting and hiring, deciding who to promote and transfer, assigning work, measuring performance, providing benefits and disciplining or firing. It means that no employee or job applicant can be treated differently in the workplace due to his or her protected characteristics. Importantly for the Kengerski plaintiff and others similarly situated, it also means that no employee, even if he or she is not part of a protected class, can be discriminated against at work based on his or her association with someone else who is part of a protected class. This unlawful practice is called “associational discrimination”.
In addition to discrimination, Title VII also prohibits harassment based on an employee’s membership in a protected class or association with someone else in a protected class. Harassment must be unwelcome and either severe or pervasive to be actionable under the statute. For instance, when a supervisor’s racist remarks to a Black employee are unwelcome and either severe or pervasive enough to alter the conditions of employment, the victim may have a hostile work environment claim. Although there is no federal law dedicated to preventing hostile work environments, hostile work environments are prohibited under various federal anti-discrimination laws, such as Title VII.
All of the federal anti-discrimination laws enforced by the EEOC, including Title VII, prohibit employer retaliation when an employee engages in a legally protected activity, such as complaining about workplace discrimination and harassment. Employees are protected from retaliation even if their claim of discrimination or harassment was unfounded, as long as they believed in good faith that it was true. Importantly, when an employee files suit for hostile work environment harassment, he or she must show that the workplace actually became hostile under the law. In contrast, when an employee brings a claim that he or she was retaliated against for complaining about a hostile work environment, the burden is merely to show that he or she reasonably believed the environment was hostile.
The Reasonable Belief Standard
Jeffrey Kengerski was a white Captain at the Allegheny County Jail in Pittsburgh, Pennsylvania. Kengerski submitted a written complaint to Warden Orlando Harper after his white supervisor, Major Robyn McCall, allegedly called his biracial grand-niece a “monkey” and then sent him a series of text messages with racially offensive comments about their Black and Asian coworkers. After filing his complaint, Kengerski asserts that McCall began to harass, ridicule and unfairly punish him in retaliation. She was put on administrative leave and eventually resigned. Kengerski claims the harassment continued at the hands of his coworkers after McCall’s resignation. Seven months after filing his complaint, Kengerski was fired.
In his lawsuit, Kengerski contends the County fired him in retaliation for reporting the racially discriminatory behavior of his supervisor. The District Court for the Western District of Pennsylvania granted the County’s motion for summary judgment, holding that (1) there can be no hostile work environment experienced by the plaintiff when he is not a member of the protected class; (2) even if the Third Circuit recognized associational discrimination, which it had not yet, that claim would also be objectively unreasonable because there was no “substantial relationship” between the plaintiff and someone of a protected class, such as a marital or parent-child relationship; and (3) McCall’s comment about Kengerski’s grand-niece and texts about their coworkers did not rise to the level of severe and pervasive conduct necessary to constitute hostile work environment as a matter of law. The Third Circuit vacated the ruling, holding that Kengerski had met his initial burden to show that his complaint about McCall was protected conduct under Title VII.
On appeal the question for the Court was whether a reasonable person, “standing in Kengerski’s shoes”, could have believed McCall’s behavior violated Title VII, so that when he complained about it, he was bringing a good faith complaint about conduct he reasonably believed to be unlawful under the statute. Title VII may be violated when racist behavior creates a hostile work environment, but Kengerski did not bring a hostile work environment claim. Rather, he alleged retaliation under Title VII. Therefore, the standard is not whether the supervisor’s conduct actually created a hostile work environment, but whether Kengerski held an objectively reasonable belief that it did. The difference between these two standards reflects a part of Title VII’s purpose to “encourage employees to report harassing conduct before it becomes severe or pervasive.” Because the Court found that a reasonable person could believe that the jail had become a hostile work environment for Kengerski, and he complained about the type of conduct that is generally protected by Title VII, he met his initial burden.
Associational Discrimination in the Third Circuit
Amici in Kengerski’s case asked the Circuit Court to hold explicitly “that an employee may be protected from retaliation when he reports a work environment that he reasonably believes is hostile to him because of his association with persons of another race.” Although the argument was not raised by the plaintiff on appeal, the Court found that “substantial public interests” warranted its consideration.
The Third Circuit held:
[W]e agree with our sister circuits 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” in violation of Title VII. This theory of discrimination is not limited to close or substantial relationships. While “one might expect the degree of an association to correlate with the likelihood of severe or pervasive discrimination on the basis of that association,” the “degree of association is irrelevant” to whether a plaintiff “is eligible for the protections of Title VII in the first place.” Employees thus may not be discriminated against because of their interracial relationships with distant relatives such as a grand-niece. (Internal citations omitted).
The important takeaways from Kengerski’s case are (1) the first hurdle in a retaliation claim is reasonableness, and (2) associational discrimination is recognized by the Third Circuit and is not limited to close familial relationships.The Title VII discrimination and retaliation landscape is complex, but this decision brings the states within the Third Circuit, including New Jersey, closer to the overarching goal of eradicating the cancer of discrimination by protecting employees’ personal and professional relationships from bias in the workplace.