Tuesday, August 8, 2006

Update on Jordan v. Alternative Resources Corp.

Scales_4A 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in Jordan v. Alternative Resources Corporation, published in the advance sheet at this citation, 447 F.3d 324, was withdrawn from the bound volume because rehearing was granted and [the] opinion vacated.”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.



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Posted by: amicus | Aug 15, 2006 11:51:33 AM

Wow! I just read this case and I am blown away by the ruling. This should have gone to a jury. Even the EEOC was in a sense ruled against. I guess he should have been an even bigger victim and pled how it kept him up late at nite and affected his work performance to have a better underlying case. Problem is, S Ct. already ruled retaliation is broader than underlying claim. This is not like the "Friends" case in CA where the banter was somehow protected by free speech. Other Catch 22 is instead of moving on and getting an employer who does "get it" he is now trapped into spending his energy fighting for "the cause" which in my experience as former plaintiffs counsel never gets the individual or their family very far. One reason why the whole system produces far more losers than winners.

Don Phin, Esq. is President of the Employer Advisors Network, Inc. and author of Lawsuit Free!: How To Prevent Employee Lawsuits; Building Powerful Employment Relationships; and Victims, Villains and Heroes: Managing Emotions in the Workplace. You can visit Don's web site at www.donphin.com

Posted by: Don Phin | Aug 24, 2006 9:27:37 AM

You know, I thought the 4th Circuit would reverse itself upon rehearing but it did not. The same panel merely issued a more thoroughly confounding opinion upholding the dismissal. 458 F.3d 332 (4th Cir. Aug. 14, 2006). Judge King wrote another vigorous dissent and a panel member sought rehearing en banc. Rehearing en banc was denied by a tie vote of 5-5. 467 F.3d 378 (4th Cir. Oct. 13, 2006). There are some telling opinions by Judges Niemeyer and King. Someone ought to write a law review article on this case.

Posted by: Anonymous | Dec 28, 2006 4:30:22 PM

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