Title VII “Race-Association” Retaliation Claim, Arising From “Monkey” Comment, Improperly Dismissed on Summary Judgment, Third Circuit Holds

In a recent case, Kengerski v. Orlando Harper; County of Allegheny, 2021 WL 3199225 (3d Cir. July 29, 2021), the U.S. Court of Appeals for the Third Circuit revived the plaintiff’s retaliation claim asserted under Title VII of the Civil Rights Act of 1964. This decision is instructive as to the claim for so-called “associational discrimination” – based on the alleged mistreatment of someone because of their association with someone else – which the court notes “is well grounded in the text of Title VII.”

The court summarized the facts, and the basis for its holding, as follows:

[Plaintiff] Jeffrey Kengerski, a Captain at the Allegheny County Jail, made a written complaint to the jail Warden alleging that a colleague had called his biracial grand-niece a “monkey” and then sent him a series of text messages with racially offensive comments about his coworkers. Seven months later, Kengerski was fired. He contends the County fired him in retaliation for reporting his colleague’s behavior and sued the County under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a). The District Court granted the County’s motion for summary judgment, holding that Kengerski, who is white, could not maintain a claim for Title VII retaliation.

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.

The court was careful to note, however, that “[t]his does not mean that Kengerski will ultimately succeed on his retaliation claim, or even that it must survive summary judgment on remand” and that the defendant County “claims that it fired him for an unrelated reason that is unquestionably serious[, namely,] mishandling a sexual harassment claim.”

It therefore remanded to the district court to consider whether plaintiff has sufficiently shown that he was fired because of his Title VII complaint.

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