With the issue of appropriate vs. inappropriate sexual conduct continuing to be the hot button topic, it is important to understand there is another related issue that remains front and center yet it remains silent, and that issue is retaliation.
In terms of workplace sexual harassment as a claim in its own right, a brief refresher is in order. When it comes to harassment in the workplace, there is a distinction regarding employer liability depending on who the alleged harasser is. Under the law, specifically the Faragher/Ellerth standard, employers are vicariously liable for supervisory harassment when the alleged victim experiences a tangible adverse employment action, such as termination, demotion or other changes to the terms or conditions of employment. However, if a supervisor harasses an employee without taking an adverse employment action, i.e., by creating a hostile work environment, the employer is still subject to vicarious liability for the supervisor’s conduct but may raise an affirmative defense to liability. See Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). In accordance with the Faragher/Ellerth affirmative defense, the employer must prove by a preponderance of the evidence: (1) it exercised reasonable care to prevent and promptly correct any sexually harassing behavior; and (2) the alleged victim unreasonably failed to take advantage of preventive or corrective opportunities the employer provided.
With respect to co-worker on co-worker harassment, an employer is negligent with respect to sexual harassment if it knew or should have known about the conduct and failed to stop it. This means that in a coworker harassment case, the employer must have reason to be aware of the harassing conduct and fail to take appropriate actions to remedy it before there is liability.
But what about retaliation?
The foregoing analysis is only applicable in the harassment context, and one thing employers and supervisors oftentimes forget or do not necessarily comprehend is that the federal and state harassment and discrimination statutes have anti-retaliation provisions that expressly prohibit retaliation against anyone who has opposed harassment or discrimination, which would include anyone reporting it and anyone participating in any process, including an investigation, regarding such a report. These are the opposition and participation clauses of the federal and state retaliation statutes respectively.
But, exactly how often do employers ignore or simply fail to understand the retaliation prohibitions? Well, in terms of charge statistics, the Equal Employment Opportunity Commission (EEOC) reported a consistent incline in retaliation suits from 1997 to 2017. As of 2017, retaliation claims were 48.8% of the EEOC’s overall total charges, whereas sex-related claims were much lower and amounted to 30.4% of the agency’s overall total charges.
Not only are retaliation charges consistently on the rise, but they pose more liability and risk for employers due to the proof required for an employee to prevail, which is lower than that required for a viable sexual harassment or sex/gender discrimination.
Retaliation claims typically have three steps. First, the employee must establish a prima facie case of retaliation by proving, by a preponderance of the evidence: (1) that the employee engaged in protected conduct, i.e., filing a complaint or participating in a related process; (2) that the employer knew of the employee’s protected activity; (3) the employer subsequently took action adverse to the employee; and (4) there must be a causal connection between the protected activity engaged in by the employee and the adverse action by the employer. Once the employee meets this step, the burden then shifts to the employer to articulate a legitimate non-retaliatory reason for taking the alleged adverse action against the employee. If the employer is able to do this, the burden shifts back to the employee one more time to prove that the employer’s so-called non-retaliatory reasons were a pretext for illegal retaliation or, in other words, bogus.
The key distinction between discrimination and harassment claims, as opposed to retaliation claims, is the “adverse action” the employee must suffer to be actionable. In harassment and discrimination claims, the adverse action must be an “employment” action, i.e., a demotion, reduction in pay, reduction in duties, etc. In the retaliation context, the adverse action does not have to be related to “employment”; rather, it just needs to be adverse or negative enough to the employee that it would chill the reporting, i.e., enough to keep the employee from speaking up. Burlington Northern & Santa Fe Railway Company v. White, 548 U.S. 53, 67 (June 22, 2006). As the Court further explained to bring an actionable retaliation claim, “a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Id. As such, retaliation claims are far broader and many employers, and their employees responsible for overseeing employees, are unaware of what exactly is prohibited. Even though Burlington Northern has been the law of land for years, employers consistently miss the retaliation prohibition piece of the law as demonstrated by the continued rise in retaliation claims.
In the era of #MeToo and #TimesUP, however, more and more employees are coming forward with their claims of discrimination and harassment and, as such, it is imperative that employers, and those managers and supervisors who act on the employer’s behalf, understand the magnitude of retaliation.
Stewart v. CUS Nashville, LLC, No. 3:11-cv-0342 (M.D. Tenn. February 6, 2013) provides a couple of examples as to how retaliation can materialize, at least enough for an employee to force an employer into litigation. In that case, a number of employees filed a lawsuit against the employer. In response, a couple of management employees had their own way of responding to the lawsuit. One took to her blog and insinuated that one of the plaintiff-employees was a thief. Another updated his Facebook status while in the same room with one of the plaintiff-employees asking that he “not kill the employee that is suing him.” Both employee-plaintiffs amended their complaints and added retaliation claims and the claims proceeded beyond the motion to amend stage, beyond the motion for summary judgment stage, and ended up being issues for trial.
Another way retaliation plays out is when the reporting employee is isolated or excluded after complaining. When responding to a harassment complaint, one of the first thing counsel advises the employer to do is separate the employee and the alleged harasser while an investigation can be done. This separation, however, can become an issue when the separation causes the employee harm in terms of lost work, lost revenue, isolation, exclusion, etc. Similarly, after an investigation is completed and remediation efforts have taken place, the employer’s job is not over. The employer must ensure that the reporting employee is not subjected to retaliation in the form of isolation or exclusion because the employee raised an issue. We have seen a hint of this issue in the news recently as more and more people have indicated they are hesitant to be around a woman for fear of being the subject of a claim. Detaching and withdrawing from a reporting employee could constitute retaliation given the right set of circumstances.
In one case that resolved before suit, an employee reported gender disparity/discrimination in the workplace. The employer’s response was to instruct the alleged harassing employee to stay away from the reporting employee. The problem was that the person charged with discrimination held an extreme position of power and essentially used that influence to blackball the reporting employee. The employee saw work dwindle, opportunities removed, and eventually became so isolated and excluded the employee resigned. Those actions, because they were taken in response to the employee’s protected complaint, were at least arguably retaliatory and, thus, actionable.
As you can see from the examples above, retaliation can be slight, but if a reasonable person would consider it adverse, a retaliation claim may hold water and create liability for the employer. And in states like Ohio and others where a manager/supervisor can be personally liable for their retaliatory conduct, the manager/supervisor may be additionally or individually charged with retaliation.
It is worth noting that, even if the underlying reports of sexual harassment are ultimately determined to be deemed “unsubstantiated” to the employer’s satisfaction, it may still be retaliatory to take action against an employee for making the report. This fact pattern played out in Carrethers v. Speer, Case No. 16-6482 (6th Cir. June 23, 2017), wherein the Sixth Circuit upheld the trial court’s denial of an employer’s motion to dismiss an employee’s retaliation claims based on the employee’s claim that she was terminated in retaliation for complaining about sexual harassment.
Gender harassment and discrimination claims are difficult enough without an employer complicating matters by retaliating or taking adverse action against the reporting employee or employees who participated in the investigation and may have said things negative to the employer’s interest. Conduct that might be considered retaliatory varies in every situation, which is another reason retaliation cases tend to get far along in the court system when brought.
Employers should ensure all employees are trained on what retaliation is and what it can look like. While it is certainly hard to treat someone the same after they have raised issues that may harm a company or another employee, the fact remains that employers are required to do just that. The law recognizes that people are retaliatory by nature. We do not like when others challenge our conduct. We do not like when people put our livelihood at issue. But the law requires that in the context of employment, employers and their employees fight their natural instincts and behave differently. Human nature is precisely the reason retaliation cases lead the pack for employment-related claims and why they will continue to do so in the future.