Retaliatory Hostile Work Environment Recognized by 11th Circuit

The Eleventh Circuit joined 10 of its sister circuits, on June 4, 2012, in recognizing retaliatory hostile work environment as a viable claim under Title VII, finding that such a claim is consistent with the statutory text, congressional intent and the EEOC’s own interpretation of the statute. Gowski v. Peake, No. 09-16371 (11th Cir. June 4, 2012).

Evidence Establishes Intent and Years of Abuse

In Gowski, two doctors claimed that they were subjected to a hostile work environment in retaliation for filing EEOC charges two years prior. At trial, the doctors presented evidence that their supervisors made a concerted effort to retaliate against any employee who filed an EEOC charge, including doctors, by targeting employees who filed complaints, spreading rumors about the doctors, attempting to ruin their reputations and careers, using other doctors as “moles” to find potentially damaging information about the doctors and encouraging other staff members to submit reports about their allegedly poor performance. Numerous doctors and staff left the hospital over a two-year period to avoid being targeted. Several staff members testified at trial that if they did not go along with the scheme, they would be targeted as well.

In addition, the hospital instructed other doctors to encourage the plaintiffs to resign, maligned the targeted doctors in front of their peers and co-workers, removed them from committees and projects, prohibited them from conducting research, reassigned them to different areas in the hospital (with a reduction in pay) and gave them low proficiency ratings.

The doctors sued, alleging that they had been harassed in retaliation for their EEOC charges in violation of Title VII. A jury awarded one plaintiff $250,000 in emotional damages and the other $1 million in emotional damages (reduced to $300,000 under the statutory cap), as well as attorneys’ fees.

On appeal, without hesitation, the Eleventh Circuit held that Title VII prohibits retaliatory hostile work environment discrimination. The court noted that this conclusion is consistent with Title VII’s remedial goals and prevents supervisors from deterring protected conduct.

Terms and Conditions of Employment Altered

Having recognized this cause of action, the court upheld the jury’s verdict, and, applying the familiar standard applicable to hostile work environment claims based on sex, found that the behavior complained of by the doctors was sufficiently severe and pervasive to alter the terms and conditions of the doctors’ employment. The court also found that the retaliatory intent was well known and continued over a period of years. Further, several other staff members testified that they chose not to file EEOC charges out of fear of retaliation.

Discrete Acts

The court did state that discrete adverse acts, such as reassignment, cannot alone form the basis of a hostile work environment claim, but that the jury could consider discrete acts as part of the evidence establishing a hostile environment. The employer tried to argue that discrete acts should not be considered because it showed it would have made the same decisions anyway, and retaliation was not the “but for” cause of the discrete events. But the Eleventh Circuit rejected that argument and stated that although the same decision defense may have precluded liability for each of the individual acts of retaliation, it could not eliminate liability for the hostile work environment when the acts were taken collectively. Indeed, the court reasoned that to allow the same decision defense to eliminate “but for” causation in a hostile work environment claim “would essentially do away with the claim.”

Employers Need to Review Policies

Now that the Eleventh Circuit has confirmed that retaliatory hostile work environment is a viable cause of action under Title VII, employers should review their policies and ensure that those policies prohibit such behavior against any individual who has made a complaint of discrimination or harassment. Additionally, employers should take this opportunity to meet with their supervisors to ensure that no one engages in actions that could be found to create a retaliatory hostile work environment.