‘Associational’ Hostile Work Environments Under Title VII

Written on 09/11/2021
Will Aitchison

Jeffrey Kengerski was a captain at the Allegheny County Jail in Pennsylvania. In April 2015, Kengerski submitted a written complaint to Orlando Harper, Warden of the Allegheny County Jail. This com­plaint was against Robyn McCall, a white female employee at the jail who had been promoted to Major in December 2014.

In his complaint, Kengerski detailed an event from over a year before where he was discussing his grand-niece Jaylynn in the presence of then-Captain McCall and other officers. Kengerski told them he was preparing for the possibility he and his wife would take Jaylynn under their care because her mother was unable to maintain her parental responsibilities.

McCall then purportedly interjected: “What kind of name is Jaylynn? Is she black?” After learning that Jaylynn was biracial, McCall allegedly responded that Kengerski “will be that guy in the store with a little monkey on his hip like Sam Pastor (another jail employee with a biracial child).” Kengerski asked her not to speak like that about his situation and left the room.

Kengerski also received a variety of racially offensive text messages from McCall. The messages depicted “unflat­tering photographs of African Americans and Asians, often repeating offensive stereotypes. For instance, several of the photographs depict overweight African American women, and one of the pho­tographs depicts an Asian woman with enlarged teeth. Some of the photographs have captions comparing them to African American and Asian employees at the jail.”

After reporting McCall’s comment and text messages, Kengerski claimed to be the victim of continuing harass­ment. The Warden subsequently referred Kengerski’s complaint to the County legal department. McCall was placed on administrative leave in May 2015 and resigned three months later.

In November 2015, seven months after his complaint and three months after McCall’s resignation, the County terminated Kengerski. It claimed that Kengerski’s termination was after he mis­handled a sexual harassment complaint, including allegations that he told two subordinate officers to lie on their reports during the investigation. Kengerski sued, claiming he was the victim of retaliation for raising complaints about the racially tinged hostile work environment.

A federal trial court ruled that Kengerski could not bring a Title VII retaliation claim as he was not the victim of a hostile work environment. The Third Circuit Court of Appeals disagreed, and reinstated Kengerski’s lawsuit.

As the Court recounted, “We agree with our sister circuits that associational discrimination is well grounded in the text of Title VII. In a practical sense, the name is a misnomer because, when you discriminate against an employee because of his association with some­one of a different race, you are in effect discriminating against him ‘because of his own race’ in violation of Title VII. Where an employee is subjected to adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee’s own race.

“This theory of discrimination is not limited to close or substantial relationships. While one might expect the degree of an association to correlate with the likelihood of severe or perva­sive discrimination on the basis of that association, the degree of association is irrelevant to whether a plaintiff is eligible for the protections of Title VII in the first place. Employees thus may not be discriminated against because of their interracial relationships with distant relatives such as a grand-niece.

“Here, McCall’s behavior was clear and consistent: she expressed racial animosity toward jail employees who either were black or associated with black persons, such as Sam Pastor (who raised a biracial child) and Kengerski (who was considering taking in his biracial grand-niece). Therefore, we simply ask whether the totality of McCall’s conduct is serious enough that a reasonable person could conclude that Kengerski’s work environment was hostile.

“While the County incredibly at­tempts to argue that the comment about Kengerski’s grand-niece (and another jail employee’s child) being monkeys was merely a harmless ‘zoomorphism,’ it is clear that this term was used in a racist manner. As the Fourth Circuit has recognized, describing an African American as a ‘monkey’ goes far beyond the merely unflattering; it is degrading and humiliating in the extreme.

“Still, we need not decide whether this isolated comment, standing alone, is enough to support a reasonable belief of a Title VII violation because McCall subsequently made numerous additional racist comments in text messages over a period of several months. Comments made about other jail employees, at least some of whom Kengerski alleges were also McCall’s subordinates, could have bolstered Kengerski’s reasonable belief that McCall’s conduct toward him was grounded in racial animosity and created a hostile work environment.”

Kengerski v. Harper, 2021 WL 3199225 (3d Cir. 2021).

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