Tuesday, August 8, 2006
A couple of months ago, I did a post on the troubling case of Jordan v. Alternative Resources Corp. (4th Cir. 2006). If you recall, the case concerned an employee complaining to his supervisors about being called an extremely ugly racial ephitet at work. After he complained, his work life became difficult and he was eventually fired.
A 2-1 divided panel of the 4th Circuit found that the plaintiff did not engage in protected activity for purposes of Title VII's anti-retaliation provisions. A vigorous dissent argued that the court's reasoning placed the employee in a Catch-22 by placing "employees like Jordan in an untenable position, requiring them to report racially hostile conduct, but leaving them entirely at the employer’s mercy when they do so."
Alex Long (Oklahoma City) wrote to me yesterday with the encouraging news that the editor's notes to the Westlaw version of the case now reads: "The opinion of the United States Court of Appeals, Fourth Circuit, in Jordan v. Alternative Resources Corporation, published in the advance sheet at this citation, 447 F.3d 324, was withdrawn from the bound volume because rehearing was granted and [the] opinion vacated.”
It sounds like the case is finally going to be decided in the correct manner, as reporting a racial epithet to one's employer has to be considered protected activity for purposes of Title VII's anti-retaliation provisions if we are serious about permitting employees to oppose racially discriminatory practices in the workplace.