An Adverse Employment Action - Not Just an Unfriendly Place to Work: Co-Worker Retaliatory Harassment under Title VII

Iowa Law Review

Volumn 87, Issue 1, 2001, Pages 235-260

  Courts, Christopher M ^a  

^a NONE

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EID: 0346490484     PISSN: 00210552     EISSN: None     Source Type: Journal    
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References (167)

1. The EEOC was established by Title VII of the Civil Rights Act of 1964 and is the federal agency in charge of enforcing Title VII. For more information on the specific duties of the EEOC, see their website at http://www.eeoc.gov/overview.html.
2. See Richardson v. N.Y. State Dep't of Corr. Serv., 180 F.3d 426, 446-47 (2d Cir. 1999) (detailing the retaliatory actions of co-workers following a racial harassment complaint).
3. See Knox v. Indiana, 93 F.3d 1327, 1331 (7th Cir. 1996) (noting that co-workers threatened a plaintiff when she returned to work after having filed a sexual harassment complaint).
4. Title VII of the Civil Rights Act of 1964 is codified as 42 U.S.C. § 2000e (1994) and generally proscribes employment discrimination.
5. See infra Part II.B for the definition of protected activities under Title VII.
6. Civil Rights Act of 1964 § 704(a)(1), 42 U.S.C. § 2000e-3(a) (1994). Section 704(a) provides: It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.
7. Manning v. Metro. Life Ins. Co., 127 F.3d 686, 692 (8th Cir. 1997).
8. See Ledergerber v. Stangler, 122 F.3d 1142, 1144-45 (8th Cir. 1997) (explaining that in the narrow-interpretation circuits, an "ultimate employment decision" is necessary for there to be an adverse employment action).
9. For a discussion on what activities qualify as "sufficiently severe," see infra Part III.A.
10. Richardson v. N.Y. State Dep't of Corr. Serv., 180 F.3d 426, 446 (2d Cir. 1999).
11. For more discussion about the hostile work environment standard see infra Parts III.A and IV.
12. 42 U.S.C. § 2000e-2(a)(1) (1994). This provision is also known as section 703(a)(1) of Title VII of the Civil Rights Act of 1964. That section states: It shall be an unlawful employment practice for an employer - (1) to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin. Id.
13. 42 U.S.C. § 2000e-3(a) (1994). This provision is also known as section 704(a)(1) of Title VII of the Civil Rights Act of 1964. See MARGARET C. JASPER, EMPLOYMENT DISCRIMINATION LAW UNDER TITLE VII 1 (1999) (noting that the EEOC was established to enforce Title VII).
14. See Jeffries v. Kansas, 147 F.3d 1220, 1231 (10th Cir. 1998) ("A plaintiff may maintain an action for retaliation based on participation in a protected proceeding regardless of whether the conduct forming the basis of her underlying complaint is adjudged to violate Title VII.").
15. The participation clause, codified as 42 U.S.C. § 2000e-3(a) covers an employee who "has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter."
16. The opposition clause, codified as 42 U.S.C. § 2000e-3(a) covers an employee who "has opposed any practice made an unlawful employment practice by this subchapter."
17. Dorothy E. Larkin, Participation Anxiety: Should Title VII's Participation Clause Protect Employees Participating in Internal Investigations, 33 GA. L. REV. 1181, 1182 n.6 (1999).
18. 118 F.3d 671 (9th Cir. 1997).
19. Id. at 680.
20. See Gifford v. Atchison, Topeka & Santa Fe Ry. Co., 685 F.2d 1149, 1155 (9th Cir. 1982) (stating that a threatened Title VII claim is protected as if the claim were made under the participation clause); see also Douglas E. Ray, Title VII Retaliation Cases: Creating a New Protected Class, 58 U. PITT. L. REV. 405, 409 (1997) (citing cases that demonstrate the extent of protection afforded by the participation clause).
21. Van Richardson v. Burrows, 885 F. Supp. 1017, 1023 (N.D. Ohio 1995).
22. See Wyatt v. City of Boston, 35 F.3d 13, 15 (1st Cir. 1994) ("There is nothing in [the] wording [of the statute] requiring that the charges be valid, nor even an implied requirement that they be reasonable.").
23. JOHN F. BUCKLEY, EQUAL EMPLOYMENT OPPORTUNITY 1999 COMPLIANCE GUIDE § 9.11[b] (1999).
24. Id. Buckley notes that often the same person who files the discrimination complaint is later retaliated against. However, Title VII also provides protection for those willing to complain about another person's situation. Id.
25. See H.R. REP. No. 88-914, at 57(1964), reprinted in 1964 U.S.C.C.A.N. 2350, 2401: The purpose of [Title VII] is to eliminate, through the utilization of formal and informal remedial procedures, discrimination in employment. . . . [Title VII] authorizes the establishment of a Federal Equal Employment Opportunity Commission and delegates to it the primary responsibility for preventing and eliminating unlawful employment practices as defined in [Title VII].
26. See Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1312 (6th Cir. 1989) (noting that the federal courts have "generally granted less protection for opposition than participation" cases).
27. BUCKLEY, supra note 23, at § 9.10[a].
28. Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 259 (4th Cir. 1998).
29. See Armstrong v. Index Journal Co., 647, F.2d 441, 448 (4th Cir. 1981) (identifying these activities as oppositional even if it is the case that they do not rise "to the level of formal charges of discrimination"). In Hochstadt v. Worcester Found., 545 F.2d 222, 231 (1st Cir. 1976), the First Circuit developed a widely accepted balancing test that weighs reasonable opposition activities with Congress's desire to allow employers to manage their employees. The Hochstadt court stated, "Courts have in each case to balance the purpose of the Act to protect persons engaging reasonably in activities opposing sexual discrimination, against Congress's equally manifest desire not to tie the hands of employers in the objective selection and control of personnel." Id. at 231.
30. See Ray, supra note 20, at 410-11 (describing a situation in which a letter complaining of unfair treatment by an employer, who awarded the job to another person, was not opposition).
31. See Clover v. Total Sys. Serv., Inc., 176 F.3d 1346, 1351 (11th Cir. 1999) (noting that an employee who seeks protection under the opposition clause must have a "good faith, reasonable belief that the employer was discriminating unlawfully); see also Wyatt v. City of Boston, 35 F.3d 13, 15 (1st Cir. 1994) (describing the objective reasonable-belief test).
32. Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768 (2d Cir. 1998).
33. See id. (detailing the three-step burden shifting process).
34. McKenzie v. Ill. Dep't of Transp., 92 F.3d 473, 483 (7th Cir. 1996).
35. Richardson v. N.Y. State Dep't of Corr. Serv., 180 F.3d 426, 443 (2d Cir. 1999).
36. 411 U.S. 792, 802 (1973). McDonnell Douglas established the current burden-shifting rules used by the courts in Title VII cases today.
37. Id. In McDonnell Douglas, the Court noted that if an employee participated in unlawful conduct against his employer, such action would be a "legitimate, nondiscriminatory reason for the employee's rejection." Id. at 802-03 (noting also that the Court "need not attempt . . . to detail every matter which fairly could be recognized as a reasonable basis for a refusal to hire").
38. See Richardson, 180 F.3d at 443 ("If the defendant meets its burden, the plaintiff must demonstrate that there is sufficient potential proof for a reasonable jury to find the proffered legitimate reason merely a pretext for impermissible retaliation.").
39. 411 U.S. at 805. The Court also noted that "statistics as to petitioner's employment policy and practice may be helpful to a determination of . . . discrimination." Id.
40. 42 U.S.C. § 2000e-3(a) (1994); see supra note 6 (providing the text of the statute).
41. See McDonnell Douglas, 411 U.S. at 805 (acknowledging the different approaches circuit courts have used to define adverse employment actions).
42. See infra Part II.D (noting the differences between the narrow-interpretation and broad-interpretation circuits).
43. See Ann M. Henry, Employer and Employee Reasonableness Regarding Retaliation Under the Ellerth/Faragher Affirmative Defense, 1999 U. CHI. LEGAL F. 553, 560-63 (detailing the development of the narrow interpretation of adverse employment action).
44. 645 F.2d 227 (4th Cir. 1981). In Page, the Fourth Circuit analyzed a Title VII retaliation claim by a black postal employee who was twice passed over for promotion. Id. at 229-34.
45. Id. at 233.
46. Id.
47. This reliance on Page's "ultimate employment decision" test is misplaced because the Fourth Circuit did not address a Title VII antiretaliation claim. Rather, Page dealt with a plaintiff who was trying to re-write the prima facie requirements for failure to promote claims. Page, 645 F.2d at 228-29. Failure to promote claims are governed by a different section of Title VII, which specifically deals with federal employment discrimination. 42 U.S.C. § 2000e-16(a). The requirement under that section of Title VII does require that an ultimate "personnel action" be taken. Therefore, the narrow-interpretation courts continue to rely on a case that did not even deal with retaliation or the adverse action prong of the retaliation prima facie case under Title VII. For further discussion of this issue, see Melissa Essary & Terence Friedman, Retaliation Claims Under Title VII, the ADEA, and the ADA: Untouchable Employees, Uncertain Employers, Unresolved Courts, 63 MO. L. REV. 115, 136-37 (1998).
48. See Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997) ("Title VII was designed to address ultimate employment decisions, not to address every decision made by employers that arguably might have some tangential effect upon those ultimate decisions."); Ledergerber v. Stangler, 122 F.3d 1142, 1144-45 (8th Cir. 1997) (explaining that the Eighth Circuit follows an "ultimate employment decision" type test by requiring that the terms and conditions of employment be "materially altered").
49. 104 F.3d 702 (5th Cir. 1997).
50. Id. at 707 (quoting Page v. Bolger, 645 F.2d 227, 233 (4th Cir. 1981)).
51. Manning v. Metro. Life Ins. Co., 127 F.3d 686, 692 (8th Cir. 1997) (quoting Montandon v. Farmland Indus., Inc., 116 F.3d 355, 359 (8th Cir. 1997)).
52. Manning, 127 F.3d at 692.
53. Mattern, 104 F.3d at 708 (emphasis removed).
54. Id.
55. Id.
56. Id. at 709.
57. Id.
58. See Page v. Bolger, 645 F.2d 227, 233 (4th Cir. 1981) ("We suggest no general test for defining those 'ultimate employment decisions . . . . '").
59. Id.
60. Essary & Friedman, supra note 47, at 134.
61. See Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997) (explaining that the Second Circuit does not "define adverse employment action solely in terms of job termination or reduced wages and benefits").
62. 141 F.3d 1453 (11th Cir. 1998).
63. Id. at 1456.
64. See Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000) (noting that the Second, Seventh, and Tenth Circuits have recognized that a hostile work environment can be an adverse employment action). For more discussion on the hostile work environment standard as an adverse employment action, see infra Part III.A. The First Circuit noted in Wyatt v. City of Boston, 35 F.3d 13, 15-16 (1st Cir. 1994), that adverse actions other than discharge are covered by the antiretaliation provision. The D.C. Circuit has also joined the broad-interpretation circuits by acknowledging that retaliation claims, whether under the ADEA or section 704(a), are not limited to "cognizable employment actions such as discharge, transfer, or demotion." Passer v. Am. Chem. Soc'y, 935 F.2d 322, 331 (B.C. Cir. 1991).
65. See Knox v. Indiana, 93 F.3d 1327, 1334 (7th Cir. 1996) (detailing that the Seventh Circuit's view that "adverse actions can come in many shapes and sizes").
66. 93 F.3d 1327 (7th Cir. 1996)
67. Id; see also Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997) ("Because there are no bright-line rules, courts must pore over each case to determine whether the challenged employment action reaches the level of 'adverse.'").
68. See Passer, 935 F.2d 322 at 331 ("The statute does not limit its reach only to acts of retaliation that take the form of cognizable employment actions such as discharge, transfer or demotion.").
69. Collins v. Illinois, 830 F.2d 692, 703 (7th Cir. 1987).
70. See Berry v. Stevinson Chevrolet, 74 F.3d 980, 986 (10th Cir. 1996) (stating that malicious prosecution by a former employer, in this case filing a malicious forgery charge against an employee who had filed an EEOC claim, was an adverse employment action).
71. See Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987) ("Transfers of job duties and undeserved performance ratings, if proven, would constitute 'adverse employment decisions' cognizable under [Title VII's antiretaliation provision].").
72. See Collins, 830 F.2d at 702-03 (noting that in a situation where such a transfer occurs, "one does not have to be an employment expert to know that an employer can make an employee's job undesirable or even unbearable without money or benefits ever entering into the picture").
73. Id. at 703.
74. 108 F.3d 462 (2d Cir. 1997).
75. See id. at 466 (indicating, as an example, that loss of an office and telephone alone has never been an adverse employment action); see also Collins, 830 F.2d at 704 (explaining that the combination of a loss of telephone services, a change in job responsibilities, the loss of an office, a transfer to a new area, an adverse desk placement, and a loss of authority "amply demonstrated an adverse job action").
76. Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1455 (11th Cir. 1998).
77. Id. at 1456.
78. See Essary & Friedman, supra note 47, at 139-40 (noting that "in perhaps the most assertive declaration in support of a broad-interpretation of 'adverse action'" the Seventh Circuit has allowed co-worker retaliation to be considered adverse action).
79. For a discussion of the hostile work environment analysis and how it relates to the broad-interpretation circuits' definition of adverse employment action, see infra note 92 and accompanying text.
80. See Gunnell v. Utah Valley State Coll., 152 F.3d 1253, 1265 (10th Cir. 1998) (identifying factual scenarios that give rise to a claim of co-worker retaliation).
81. Id.
82. Id.
83. Id.
84. Id.
85. See Richardson v. N.Y. State Dep't of Corr. Serv., 180 F.3d 426, 445 (2d Cir. 1999) (detailing the developing circuit split).
86. The First, Second, Seventh, Ninth, and Tenth Circuits are the broad-interpretation circuits that have explicitly held that co-worker retaliation situations may qualify as adverse employment actions. See, e.g., Fiedler v. UAL Corp., 218 F.3d 973, 984-85 (9th Cir. 2000) ("Because we have traditionally recognized the vital remedial role of Title VII, we hold, therefore, that Title VII's protection against retaliatory discrimination extends to employer liability for co-worker retaliation that rises to the level of an adverse employment action."); Richardson, 180 F.3d at 446 (holding that unchecked retaliatory harassment by co-workers is an adverse employment action); Gunnell, 152 F.3d at 1264 (holding that "co-worker hostility or retaliatory harassment, if sufficiently severe, may constitute 'adverse employment action' for purposes of a retaliation claim"); Knox v. Indiana, 93 F.3d 1327, 1334 (7th Cir. 1996) (holding that co-worker retaliation may be actionable as an adverse employment action); Wyatt v. City of Boston, 35 F.3d 13, 16 (1st Cir. 1994) (noting that harassment by other employees qualifies as an adverse employment action). The Sixth Circuit, in Morris v. Oldham County Fiscal Court, 201 F.3d 784, 791 (6th Cir. 2000), joined the broad-interpretation circuits in recognizing that adverse employment actions do not need to be ultimate employment decisions. The court adopted the Second and Tenth Circuits' rationale for their co-worker retaliation rulings. However, the Sixth Circuit examined supervisor retaliation and did not have the opportunity under the facts of the case to examine co-worker retaliation. Id.
87. 93 F.3d 1327, 1335 (7th Cir. 1996). The Knox case involved a retaliation claim by a female plaintiff who was allegedly subjected to a quid pro quo and hostile environment sexual harassment. Once Ms. Knox filed the EEOC claim, she was subjected to retaliation by her co-workers in the form of "vicious gossip" and general co-worker harassment. Id.
88. Id.
89. See, e.g., Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996) ("Adverse employment action has been defined quite broadly in this circuit."); Veprinsky v. Fluor Daniel, Inc., 87 F.3d 881, 892 (7th Cir. 1996) (interpreting adverse employment actions broadly); Collins v. Illinois, 830 F.2d 692, 703 (7th Cir. 1987) (noting the variety of forms that adverse employment action can take).
90. Knox, 93 F.3d at 1334.
91. Id.
92. Id. The broad-interpretation circuits, starting with the Seventh Circuit in Knox, rely on an employer negligence standard of liability that is explicitly articulated in cases involving hostile work environment claims. Section 703(a), Title VII's substantive anti-discrimination provision, states it is unlawful for an employer to "fail or refuse to hire . . . or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of an individual's race, color, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1) (1994). Actionable hostile work environments are created when the workplace becomes "permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the victim's employment and creates an abusive working environment." Harris v. Forklift Sys. Inc., 510 U.S. 17, 21 (1993). Therefore, any discrimination or harassment based on one of the Title VII protections is actionable under a hostile work environment claim so long as it is sufficiently severe. The Seventh Circuit, along with the First, Second, Ninth, and Tenth Circuits, has looked to the hostile work environment doctrine under section 703(a) for guidance on two issues: 1) whether employers can be held liable for co-worker retaliation; and 2) whether co-worker retaliation can be considered an adverse employment action under section 704(a). While the antiretaliation and anti-discrimination provisions are not identical, they both apply the same burden-shifting analysis of McDonnell Douglas, and therefore they both involve the adverse employment action requirement of the prima facie case. Since the language of both these sections makes it illegal for employers to discriminate, the broad-interpretation courts have found the hostile work environment doctrine instructive in dealing with issues of employer liability and what constitutes adverse employment action. For a more detailed comparison of sections 703(a) and 704(a), see infra Part IV and Kari Jahnke, Note, Protecting Employees From Employees: Applying Title VII's Antiretaliation Provision To Co-Worker Harassment, 19 LAW & INEQ. 101, 103-05 (2001). For an analysis of the issues surrounding employer liability, see infra notes 94-101 and accompanying text as well as Part IV.A. For a discussion of adverse employment action and its analysis under the hostile work environment doctrine, see infra notes 102-114, 157-163 and accompanying text.
93. Knox, 93 F.3d at 1334. The Supreme Court has re-emphasized this point in the recent sexual harassment case of Burlington Indus. v. Ellerth, 524 U.S. 742, 759 (1998). The Court stated: An employer can be liable, nonetheless, where its own negligence is a cause of the 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. Negligence sets a minimum standard for employer liability under Title VII. Id.
94. Id. Hunter v. Allis-Chalmers Corp., 797 F.2d 1417 (7th Cir. 1986), is an example of a racial discrimination case in which the Seventh Circuit found an employer liable based on this negligence standard. The Knox court stated, "[T] his court held an employer liable under Title VII for failing to deal effectively with what it knew to be a vicious campaign of racial harassment by co-workers . . . ." Knox, 93 F.3d at 1333.
95. See Knox, 93 F.3d at 1333 ("[T]here is nothing to indicate that the principle of employer responsibility does not extend equally to other Title VII claims, such as a claim of unlawful retaliation."); see also supra note 92 (noting that employer liability can extend to hostile work environments based on any of the protected Title VII classes; harassment based on race and sex are only two of the protected groups).
96. 152 F.3d 1253 (10th Cir. 1998). The Gunnell case dealt with a plaintiff who filed an EEOC sexual harassment claim and a subsequent retaliation claim based on co-worker retaliation. Id. The plaintiff was subjected to co-worker harassment in the forms of unfavorable treatment, conspiracies to make her fail, and complete isolation after no co-worker would communicate with her. Id.
97. Id. at 1265.
98. Id. The court stated: An employer may not be held liable for the retaliatory acts of co-workers if none of its supervisory or management-level personnel orchestrated, condoned, or encouraged the co-worker's actions, and no such management participation could occur if the supervisory or management-level personnel did not actually know of the co-workers' retaliation. Id.
99. See, e.g., Ray v. Henderson, 217 F.3d 1234, 1243-45 (9th Cir. 2000) (following the Second, Seventh, and Tenth Circuits in creating employer liability for co-worker retaliation); Fielder v. UAL Corp., 218 F.3d 973, 983 (9th Cir. 2000) (relying on the vicarious liability standard from Burlington Indus. and Gunnell); Richardson v. N.Y. State Dep't of Corr. Serv., 180 F.3d 426, 445 (2d Cir. 1999) (purporting to follow the negligence-based standard established in Gunnell and Knox).
100. The First Circuit, in Wyatt v. City of Boston, 35 F.3d 13, 15-16 (1st Cir. 1994), stated two years before Knox that co-worker retaliation could constitute an adverse employment action. In Wyatt, the court mentioned that among other activities, "toleration of harassment by other employees" qualified as an adverse employment action for prima facie retaliation. Id.
101. Knox v. Indiana, 93 F.3d 1327, 1334 (7th Cir. 1996). The court describes such activities as losing desirable offices, phone use, support services, or a change in work type as creating an "unfriendly working environment." Id.
102. Id. The court stated, "Nothing indicates why a different form of retaliation - namely, retaliating against a complainant by permitting her fellow employees to punish her for invoking her rights under Title VII - does not fall within the statute." Id.
103. Harris v. Forklift Sys. Inc., 510 U.S. 17, 21 (1993). The Harris case applied the hostile work environment doctrine to a situation of managerial harassment on the basis of sex. Id.
104. See Ray, 217 F.3d at 1245 (noting that "[h]arassment is obviously actionable when based on race or gender . . . [and] [h]arassment as retaliation for engaging in a protected activity should be no different").
105. Id; see also Gunnell v. Utah Valley State College, 152 F.3d 1253, 1264 (10th Cir. 1998) (holding that "co-worker hostility or retaliatory harassment, if sufficiently severe, may constitute "adverse employment action" for purposes of a retaliation claim").
106. See Ray, 217 F.3d at 1244 (noting the uniformity that the hostile work environment standard has brought to the definition of "adverse employment action").
107. 180 F.3d 426, 446 (2d Cir. 1999). The Richardson court noted that "unchecked retaliatory co-worker harassment, if sufficiently severe, may constitute adverse employment action." Id. In that case, the court found that the plaintiff was subject to "sufficiently severe" harassment, thereby creating a hostile environment, when co-workers placed "manure in her parking space, hair in her food, a rubber band shot at her, and scratches on her car." Id. at 446-47. The management personnel did not aid the plaintiff in solving the problem and actually left it up to her to deal with the retaliation. Id.
108. 134 F.3d 878, 886 (7th Cir. 1998). The court in Drake acknowledged that "retaliation can take the form of a hostile work environment." Id. The Seventh Circuit did not find the co-worker retaliation in that case - merely shunning a protected employee - was sufficiently severe enough to create a hostile environment.
109. 217 F.3d at 1244; see also Fielder v. UAL Corp., 218 F.3d 973, 984 (9th Cir. 2000) (analyzing what approach other circuits had taken to co-worker retaliation).
110. 217 F.3d at 1245. The Ray court looked at the hostile environment standards (requiring that harassment be sufficiently severe or pervasive) set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
111. See Ray, 217 F.3d at 1245 (citing Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998), for guidance on how to evaluate hostile work environment claims in sexual harassment situations); see also infra note 158 and accompanying text for a discussion of the guidelines.
112. See Ray, 217 F.3d at 1245 (citing Strother v. S. Cal. Permanente Med. Group, 79 F.3d 859, 869 (9th Cir. 1996), for the proposition that "mere ostracism in the workplace is not enough to show an adverse employment decision").
113. Ray, 217 F.3d at 1245.
114. Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997); see also supra Part II.C (detailing the narrow-interpretation courts' definition of adverse employment actions).
115. 104 F.3d 702 (5th Cir. 1997). The Mattern case dealt with five different types of retaliation claims. The plaintiff claimed that the employer sent supervisors to check on her when she took a sick day, that co-workers retaliated against her in the form of harassment and shunning, that she suffered frivolous reprimands, that there was a hostile work environment, and that the employer gave her unwarranted negative performance reviews. Id. at 705-06. The court analyzed each claim separately.
116. Id. at 707.
117. Id.
118. See id. at 707-08 (addressing the Fifth Circuit's narrow interpretation of the Title VII retaliation provision).
119. Id. at 708. The dissent vehemently disagreed with the majority's holding by noting that co-worker retaliation was not an adverse employment action when examining the situation in light of the particular facts. Id. at 714 (Dennis, J., dissenting).
120. Mattern, 104 F.3d at 708.
121. 127 F.3d 686 (8th Cir. 1997).
122. Id. at 692.
123. Id.
124. Id. (quoting Montandon v. Farmland Indus., Inc., 116 F.3d 355, 359 (8th Cir. 1997)).
125. See von Gunten v. Maryland, 243 F.3d 858, 864-66 (4th Cir. 2001) (describing the different approaches the broad- and narrow-interpretation circuits use to define adverse employment action while not expressly adopting either test).
126. 126 F.3d 239 (4th Cir. 1997).
127. Ms. Munday filed a sexual harassment claim against her employer. Therefore, she was a protected employee under the participation clause of section 704(a). Id. at 241-42.
128. See id. at 243 ("In no case in this circuit have we found an adverse employment action to encompass a situation where the employer has instructed employees to ignore and spy on an employee who engaged in protected activity . . . ."); see also Scusa v. Nestle U.S.A. Co., 181 F.3d 958, 969-70 (8th Cir. 1999) (noting that ostracism by co-workers is not enough to be considered an adverse employment action).
129. Munday, 126 F.3d at 243.
130. See Richardson v. N.Y. State Dep't of Corr. Serv., 180 F.3d 426, 445-46 (2d Cir. 1999) (contrasting the broad-interpretation circuits with Munday and Mattern).
131. See von Gunten v. Maryland, 243 F.3d 858, 865 (4th Cir. 2001) ("Munday teach[es] that conduct short of 'ultimate employment decisions' can constitute adverse employment action for purposes of § 2000e-3.").
132. 243 F.3d 858 (4th Cir. 2001).
133. Id. at 866. In von Gunten, the Fourth Circuit held that when an employer withdrew an employee's use of a state vehicle, downgraded her year end review, reassigned her work tasks, and improperly handled various administrative matters following a filed complaint, it did not take an adverse employment action against the employee. Id. at 870
134. Id. at 866.
135. Id. at 869-70.
136. Compare von Gunten, 243 F.3d at 869-70 ("Retaliatory harassment can constitute adverse employment action.") with Fiedler v. UAL Corp., 218 F.3d 973, 984-85 (9th Cir. 2000) ("Because we have traditionally recognized the vital remedial role of Title VII, we hold, therefore, that Title VII's protection against retaliatory discrimination extends to employer liability for co-worker retaliation that rises to the level of an adverse employment action."), Richardson v. N.Y. State Dep't of Corr. Serv., 180 F.3d 426, 446 (2d Cir. 1999) (holding that unchecked co-worker retaliatory harassment is an adverse employment action), and Gunnell v. Utah Valley State Coll., 152 F.3d 1253, 1264 (10th Cir. 1998) (holding that "co-worker hostility or retaliatory harassment, if sufficiently severe, may constitute 'adverse employment action' for purposes of a retaliation claim").
137. von Gunten, 243 F.3d at 869-70.
138. See supra notes 94-101 and accompanying text for a discussion on the issue of employer liability in co-worker retaliation cases.
139. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 758-59 (1998) (holding that employers can be liable for harassment in situations where an employer's own negligence caused the hostile work environment). Therefore, employers are negligent in situations where they knew or should have known about co-worker harassment and failed to stop it. Id. at 759; see also Faragher v. City of Boca Raton, 524 U.S. 775, 788-89 (1998) (citing cases where employers were liable under this negligence standard).
140. 524 U.S. 742 (1998).
141. 524 U.S. 775 (1998).
142. Id. at 760.
143. The narrow-interpretation circuits interpreted section 703(a) of Title VII by relying on the Fourth Circuit's decision in Page v. Bolger, 645 F.2d 227, 233 (4th Cir. 1981). The Page court noted that it relied on "comparable provisions" of Title VII and specifically looked at what could be defined as a "personnel decision" under section 703(a). Id. Interestingly, the Fifth and Eighth Circuits imputed the Page court's determination that personnel decisions could only be "ultimate employment decisions." The Page court, however, was not dealing with the antiretaliation provisions. Rather it was dealing with substantive discrimination section of Title VII. For more discussion on the narrow-interpretation circuits' misplaced reliance on Page, see supra note 47. The broad-interpretation courts often look to section 703(a) and cases involving hostile environment claims based on sex and race. See, Ray v. Henderson, 217 F.3d 1234, 1245 (9th Cir. 2000).
144. See Henry, supra note 43, at 555 (noting that the narrow interpretation of the antiretaliation provisions by the Fourth, Fifth, and Eighth Circuits contrasts with the Supreme Court's recent holdings in Faragher and Ellerth).
145. 42 U.S.C. § 2000e-3(a)(1994) (emphasis added).
146. See Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1456 (11th Cir. 1998) (noting that "in the light of ordinary understanding, the term 'discriminate' is not limited to 'ultimate employment decisions'").
147. The substantive discrimination provisions of section 703(a) generally proscribe the employment practices that are commonly referred to in employment discrimination as "Title VII." Part (a) of the provision states: It shall be an unlawful employment practice for an employer - (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such an individual's race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin. 42 U.S.C. §2000e-2(a) (1994). The antiretaliation provisions of section 704(a) do not detail the employment practices that are required before such a claim can be brought. They merely proscribe "discrimination." 42 U.S.C. § 2000e-2(a)(1)(1994). The broad-interpretation circuits have interpreted this key difference in Title VII to mean that a broad range of activities may be considered adverse employment actions. See Henry, supra note 43, at 555-57.
148. See supra note 147 for the language of § 703(a) of Title VII; see also Mattern v. Eastman Kodak Co., 104 F.3d 702, 714-15 (5th Cir. 1997) (Dennis, J., dissenting) (noting the language of Title VII in his dissent, Circuit Judge Dennis pointed out that the Fifth Circuit incorrectly looked to the substantive discrimination provisions of Title VII). Judge Dennis correctly indicated that there are separate causes of action under sections 703(a) and 704(a) and that the Fifth Circuit should not use the "ultimate employment decision" language of section 703(a) when looking at retaliation claims under section 704(a). Id. He also correctly noted that plaintiffs bringing retaliation claims are entitled to "exceptionally broad protection for . . . discriminatory employment practices." Id.
149. See EEOC COMPLIANCE MANUAL § 8-II, WL EEOCCM S 8-II (2000) (acknowledging that retaliation deters workers from engaging in protected activities).
150. See Wideman, 141 F.3d at 1456 (noting that the remedial purpose of § 704(a) is consistent with the broad interpretation of the statute).
151. Id.
152. See Ray v. Henderson, 217 F.3d 1234, 1245 (9th Cir. 2000) ("Harassment is obviously actionable when based on race and gender. Harassment as retaliation for engaging in protected activity should be no different . . . [it] is actionable only if it is 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'") (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993)).
153. Mattern, 104 F.3d at 707.
154. Id. The narrow-interpretation courts feel that actionable retaliation occurs only when the "hiring, granting leave, discharging, promoting, and compensating" of employees are interfered with. Id. Any other retaliatory actions such as the creation of a hostile work environment, the maintenance of unworkable conditions, or the performance of some other vague harms are not adverse employment actions according to the narrow view. Id.
155. See Richardson v. N.Y. State Dep't of Corr. Serv., 180 F.3d 426, 446 (2d Cir. 1999) ("Just as an employer will be liable in negligence for a racially or sexually hostile work environment created by a victim's co-workers . . . [so long as they are negligent] . . . so too will an employer be held accountable for allowing retaliatory co-worker harassment to occur . . . .").
156. Id.
157. Ray, 217 F.3d at 1245 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). Harris clarified and upheld the hostile environment cause of action under Title VII established by Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986). Meritor established that a hostile work environment and not just quid pro quo harassment was actionable under Title VII. Meritor, 477 U.S. at 63-67. The Court in Harris, however, established that a hostile environment need not seriously affect the plaintiff psychologically or physically. Harris, 510 U.S. at 21. Rather, the harassment must be both subjectively and objectively offensive, and the totality of the circumstances needs to be examined to determine whether an environment is sufficiently severe enough to amount to harassment. Id. at 21-23.
158. The elements necessary to prove a hostile work environment claim brought under section 703(a) of Title VII are: 1) the plaintiff belonged to a protected class; 2) the plaintiff was subject to unwelcome harassment; 3) the harassment was based on the plaintiff's membership in the protected class; 4) the harassment affected a term, condition or privilege of employment; 5) the employer knew or should have known of the harassment and failed to take prompt remedial action. Hall v. Gus Constr. Co., 842 F.2d 1010, 1013 (8th Cir. 1988). The circuit courts agree that plaintiffs in retaliation cases who have filed a claim with the EEOC or opposed a workplace Title VII violation are a protected class and therefore meet the first element of a hostile environment claim. Clover v. Total Sys. Serv., Inc., 176 F.3d 1346, 1352 (11th Cir. 1999). The broad-interpretation circuits find that co-worker retaliation meets the third element of the hostile environment test because plaintiffs are being harassed based on their membership in a protected class. Ray, 217 F.3d at 1245. The most recent circuit to examine co-worker retaliation stated, "Harassment is obviously actionable when based on race and gender. Harassment as retaliation for engaging in protected activity should be no different . . . ." Id.
159. Harris, 510 U.S. at 21 (quoting Meritor, 477 U.S. at 65).
160. Richardson v. N.Y. State Dep't. of Corr. Serv., 180 F.3d 426, 446 (2d Cir. 1999) (citing Knox v. Indiana, 93 F.3d 1327, 1334 (7th Cir. 1996)). It is important to note the context in which these circuit courts make this point: the Supreme Court has never limited their application of employer liability under hostile work environment harassment to section 703(a).
161. 510 U.S. at 21-23; see supra note 157 (describing the "sufficiently severe" hostile work environment standard); see also Richardson, 180 F.3d at 446 (noting that "unchecked retaliatory co-worker harassment" must meet the "sufficiently severe or pervasive" standard before it is an adverse employment action).
162. Ray, 217 F.3d at 1245 (quoting Harris, 510 U.S. at 23).
163. See Mattern v. Eastman Kodak Co., 104 F.3d 702, 711-12 (5th Cir. 1996) (Dennis, J., dissenting) (noting that the Supreme Court cited and upheld the EEOC's opinion that discrimination causes of action under § 703(a) could include hostile environment claims). The Supreme Court, in Meritor Savings Bank v. Vinson, 477 U.S. 57, 65 (1986), used the EEOC's interpretations and opinions to establish the hostile environment cause of action.
164. Id.
165. See EEOC COMPLIANCE MANUAL, § 614.7 (g)(2) (1994) (noting that retaliation by co-workers or even the employer's customers can create an adverse employment action). The EEOC also notes that in such situations the employer has a duty to take "steps reasonably calculated to end the retaliation." Id. The EEOC relies on the negligence standard that the broad-interpretation courts adopted from hostile environment claims under Title VII. Id.; see supra note 157 for more discussion on this standard.
166. EEOC COMPLIANCE MANUAL § 8-II, WL EEOCCM S 8-II (2000).
167. Ray, 217 F.3d at 1243. The court in Ray notes that "[the] EEOC Guidelines are not binding on the courts, [however] they 'constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.'" Id. (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)); see BUCKLEY, supra note 23 (describing the EEOC's view that the language of section 704(a) is aimed at protecting potential claimants).