(This continues our series of posts highlighting interesting things we find as we review Alito’s judicial opinions. The first, discussing his dissent from a ruling upholding Congress’ ban on the possession and transfer of machine guns, is here; the second, on Congress’ power to guarantee family and medical leave, is here; the third, on his troubling decision in Casey v. Planned Parenthood, involving the right to choose, is here; and the fourth, on his dissent in a case involving the strip search of a ten year old girl, is here.)
Today we want to tell you about a sexual harassment case called Pirolli v. World Flavors. We know about this case only because it was turned over to the Senate Judiciary Committee in response to a request for all of Judge Alito’s unpublished opinions. This case was brought by a mentally disabled man (with an IQ of 75) named Kenneth Pirolli, who was employed to stack boxes, pick up trash, and scrub floors. He filed a sexual harassment case against his employer, alleging that co-workers attempted to forcibly sodomize him, beat him, stuffed him into garbage bags, posed vulgar and sexual questions and propositions to him, and abused him in other appalling ways. He claimed that he reported the incidents to his supervisor but the conduct continued.
The majority of the Third Circuit panel that heard the case ruled that it could go forward under established caselaw on sexual harassment. The court concluded that a reasonable jury, viewing the entire course of conduct Pirolli alleged, could view the conduct “as having occurred because of [Pirolli’s] sex and as severe and pervasive enough to create an abusive work environment.” On that basis, the court allowed the case to proceed, reversing the lower court’s grant of summary judgment for the employer. The court noted that although Pirolli’s lawyer had not adequately briefed the relevant issues, “manifest injustice” would result if the court did not hear the case.
Judge Alito, however, dissented. He would have thrown out the case. In his dissent, he explained that Pirolli‘s brief failed to point to specific parts of the record describing the conduct on which his claim was based. By contrast, his colleagues on the court had no problem determining what Pirolli was alleging. Alito, however, would have kept the case from going to a jury because Pirolli’s arguments and allegations were not adequately presented in his brief.
It should not surprise our readers to learn that we find it extremely disturbing that Alito was willing to throw out a complaint alleging egregious sexual harassment – and to do so based on nothing more than a pleading error by the plaintiff’s lawyer. The Supreme Court is sure to deal with issues surrounding sexual harassment in the future. If Judge Alito joins the Court, sexual harassment plaintiffs have much to fear.
samuel alito
