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White Relative Can Sustain Discrimination Action Based on Comment Towards Biracial Niece

Jeffrey Kengerski was a corrections officer at the Alleghany County Jail. In 2015, he complained to the warden about a conversation with another employee, Robyn McCall. Kengerski had been discussing his grand-niece because he and his wife anticipated having to care for her. McCall (who at certain points was Kengerki’s supervisor) allegedly asked if the child was “black” because of her name. When Kengerski let her know the child was biracial, McCall allegedly asked if Kengerski “will be that guy in the store with a little monkey on his hip” and referenced another employee with a biracial child. Kengerski’s complaint about McCall included race-based text messages from her about Black and Asian people. Kengerski alleged that he was harassed and retaliated against after complaining about her and ultimately forced to resign. A federal district court dismissed Kengerski’s claim for retaliation, holding it failed as a matter of law.

The Third Circuit Court of Appeals considered whether Kengerski showed he held an objectively reasonable belief that his workplace was hostile. The court distinguished this standard from pursuing a hostile work environment claim where Kengerski would have needed to show the environment actually was hostile. Under Title VII, an employee’s complaint must pertain to conduct protected by Title VII, including discrimination based on an employee’s association with a person of another race. According to the court, the “degree of association is irrelevant” to whether Kengerski was eligible for Title VII protection. With the facts before it, the court concluded McCall’s behavior was “clear and consistent: she expressed racial animosity toward jail employees who either were [B]lack or associated with black persons…” The County’s attempt to argue that a reference to the child as “monkey” was not race-based was quickly dismissed. The appellate court expressed incredulity, citing prior cases referring to the term as “about as odious” as the use of the “n-word.” The comments made by McCall were sufficient for a reasonable employee in Kengerski’s shoes to believe the work environment was hostile. The court sent the case back to the lower court to proceed.