San Antonio Employment Discrimination Lawyer & Attorney : McKinney Law Firm : Sexual Harassment, Wrongful Termination : Texas

Strategic HR Lawyer has a great post today on a topic that has become a near mantra for me. Retaliation is always worse than the original discrimination claim. Ask any employment lawyer and she or he will tell you of all the cases where an employee with not much of a discrimination claim recovered a Big $$ settlement or verdict because an unwise manager retaliated against said employee for voicing a complaint.

The newest development in this arena is the increasing acceptance by the courts of retaliatory harassment as an actionable claim. The increasingly majority view is that actionable retaliation claims may be based not only on so-called "ultimate employment actions" (like termination or demotion) but also on harassment suffered by plaintiffs at the hands of supervisors or even co-workers. Last month, the Third Circuit joined the majority of the circuits by holding such in Jensen v. Potter, No. 04-4078 (3d Cir. Jan. 31, 2006). The Fifth and Eighth Circuits are the only remaining holdouts.

We previously posted about the Jensen case here, regarding the fact that this pro-employee opinion was authored by now-Justice Alito. Given his new position on the Supreme Court, I think we have a pretty clear idea of which way it will swing on this issue once it gets the chance.