Academic journal article Journal of Environmental Health

More on Retaliation and on the Public-Health Authority of State and Local Governments

Academic journal article Journal of Environmental Health

More on Retaliation and on the Public-Health Authority of State and Local Governments

Article excerpt

Introduction

In April's Journal, this column examined a case that upheld the First Amendment and civil rights of an environmental health professional (42 U.S.C. [sections]1983) against retaliation by a public-health department for statements she had made on a matter of public concern (Myers v. Hasara). Other public-employee actions may also be protected from official retaliation, The first case examined here this month involves alleged retaliation against an environmental health aide who had complained about sexual harassment.

The second and third cases concern the extent of government authority Case #2 asks whether a state agency has the authority to regulate the disposal of debris from land clearing and explains how a relevant statute should be interpreted. Case #3 is about the validity of a county ordinance that regulates swine farming more stringently than does state law.

Case #1: Retaliation for Complaining About Sexual Harassment

Sexual harassment on the job is illegal (42 U.S.C. [sections]2000e-2). Furthermore, federal law forbids an employer to discriminate because an employee has filed a sexual harassment charge (42 U.S.C. [sections] The question, though, is what constitutes retaliation.

In Von Gunten v. State of Maryland, an environmental health aide with the Maryland Department of Environment did shoreline sanitary surveys in the winter and collected water samples by boat from the Chesapeake Bay in the spring, summer, and fall. She accused her boat partner of sexual harassment.

The accusations were made to the section head and the Fair Practices Office. Unconvinced of any harassment, the section head nevertheless removed her from boat duty as she requested. Subsequently her state car was re-allocated, and she had to use her personal vehicle; her year-end evaluation process was altered; certain administrative matters were handled differently; and she claimed that a hostile work environment was created. Ultimately she resigned about 15 months after she first made her charges of sexual harassment. After considering the form, nature, extent, and reasons for the alleged "retaliation," both the U.S. District Court and the Court of Appeals determined that no unlawful retaliation had occurred.

Unlawful retaliation occurs if

1. an employee engages in a protected activity such as complaining of sexual harassment,

2. her employer takes an adverse employment action against her, and

3. a causal connection exists between the protected activity and the asserted adverse action.

An unlawful adverse employment action may be either an ultimate employment decision (e.g., hiring, firing, refusal to promote, granting leave, a compensation decision) or any retaliatory act or harassment if it causes an adverse effect on the terms, conditions, or benefits of employment.

Temporary withdrawal of a state vehicle was not an adverse employment action. First, the use of a state vehicle is probably not an employment benefit, and no one should expect to permanently have the use of a state vehicle. In addition, the environmental health aide received proper mileage reimbursement, and the vehicle was merely reassigned to others who had a longer distance to drive.

The second issue concerned the plaintiffs employment evaluation. Other cases have held that a retaliatory downgrade on a performance evaluation could affect a condition of employment and be unlawful. In this case, however, the entire department was switching from one evaluation form to another. The aide was evaluated under both forms. On the old form, there were five categories, and she was rated "needs improvement," which was the next-to-the-lowest category. On the new form, she was rated "unsatisfactory," which was the lowest of three categories. The court held there was no practical distinction between the two categories.

Next, the Court said that the aide had suffered no decrease in pay, benefits, job title, or the nature of her work with the job reassignment. …

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