Wednesday, March 13, 2019

Third Circuit on federal employee retaliation claims

The Third Circuit faced two issues in Komis v. DOL:

First - Can federal employees bring retaliation claims under Title VII. The Court concluded (in alignment with other circuits) that, yes, federal employees may bring retaliation claims under Title VII.

Not official use.
Second - Does the same standard govern federal and private sector retaliation claims? On this one we get a punt. The Court declined to answer because it was not necessary to resolve the case. Although it was not resolved, the issue itself is interesting.

Title VII initially (in 1964) contained provisions prohibiting private employment discrimination, and private employment retaliation. In 1972, Congress amended Title VII to prohibit federal employment discrimination - but that provision does not expressly address retaliation.

As the Court held, federal employees may still bring retaliation claims - but does the same standard apply? In a well-known case, Burlington Northern, the Supreme Court contrasted the standard under the private employment discrimination provision (requiring an adverse employment action, affecting terms and conditions of employment), and the anti-retaliation provision (requiring only a materially adverse action - that would dissuade a reasonable person from engaging in protected activity).

Which standard applies to federal employees (given that they only have the anti-discrimination provision but not the express anti-retaliation provision)? We still don't know. The Court did note, however, that the D.C. Circuit and 7th Circuit both applied the Burlington Northern standard to federal sector employees.

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