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Associational Discrimination is Prohibited by Title VII

September 21, 2021

By Alan C. Blanco, Esquire and Angela M. Mauroni

The parameters of illegal discrimination in the workplace are frequently debated and litigated.   One such recent debate was in the case of Kengerski v. Harper, in which the United States Third Circuit addressed the issue of “associational discrimination” under Title VII of the Civil Rights Act of 1964, a statute that is one of the cornerstones of discrimination law.

Title VII prohibits discrimination on the basis of race, color, religion, sex, and national origin. If an individual is being discriminated against on one of these bases, they are considered a member of a “protected class.” In Kengerski v. Harper, the Third Circuit ruled that a white employee can maintain a claim of retaliation under Title VII based on their association with an individual who is part of a protected class. In particular, the court held that harassment against an employee because he associates with a person of another race, such as a family member, may violate Title VII of the Civil Rights Act by creating a hostile work environment.

Jeffrey Kengerski was a captain at the Allegheny County Jail who made written complaints to Orlando Harper, the Warden, about a colleague after the colleague used a racial slur to refer to Kengerski’s biracial grand-niece and sent Kengerski racially offensive comments about his coworkers.

Kengerski was fired in what he alleges is retaliation for these written complaints, and he sued the County under Title VII of the Civil Rights Act. The lower court ruled in favor of the County because Kengerski is white, and it thus believed Kengerski could not maintain a claim for Title VII retaliation.

Kengerski was supported in filing his complaints by briefs submitted by several outside parties, including Rothman Gordon attorney Samuel Cordes. In coming to its decision, the Third Circuit adopted the reasoning presented by Attorney Cordes.

The Third Circuit first reiterated that Title VII “protects all employees from retaliation when they reasonably believe that behavior at their work violates the statute and they make a good-faith complaint.” It held that ending the case in favor of the County at this point was improper because “a reasonable person could believe that the Allegheny County Jail was a hostile work environment for Kengerski” because “he associates with a person of another race.”

The court also elaborated on the appropriate interpretation of Title VII’s discrimination protection in this context. While it is often called “associational discrimination” when a person is discriminated against because of their association with a person in a protected class, Attorney Cordes argued in his supporting brief that a “white employee who is harassed based on his relationship with a member of a different race is subjected to racial harassment because it would not occur if that employee was not white.”  The Third Circuit agreed, stating that it is in truth discrimination against the employee individually.

The court held that “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.” This is because, although the root animus for the discrimination is prejudice against the individual with whom the employee has associated, the white employee is being discriminated against for being a white person associating with a member of another race.

Furthermore, Attorney Cordes argued that the degree of association between the employee and the member of a protected class need not be close or substantial, and the Third Circuit adopted this holding as well. For instance, the employee need not be married to the member of the protected class. In this case, Kengerski’s association is with his grand-niece, and this association is sufficient to prohibit others from discriminating against Kengerski because of his association.

This case addressed an important issue by clarifying the ways in which discrimination need not be based on the physical characteristics of the employee that is fired or is facing an otherwise adverse employment action. Ultimately, should an individual be associating with someone who is protected under Title VII, they too are protected from discrimination for their association.

If you have experienced racial discrimination in the workplace, contact us online or call (412) 338-1100.

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