The retaliatory hostile work environment. The Retaliatory Hostile Work Environment A Hybrid Cause of Action in Search of a Standard PETER M.

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1 46 THE FEDERAL LAWYER June 2017

2 The Retaliatory Hostile Work Environment A Hybrid Cause of Action in Search of a Standard PETER M. MANSFIELD The retaliatory hostile work environment is a hybrid claim drawing upon Supreme Court precedent analyzing separate provisions of Title VII of the Civil Rights Act of Despite the high volume of Title VII litigation, confusion persists in federal courts regarding the proper standard to apply to this claim. As outlined below, the courts resolution of this issue is critical to litigants. Employment-law litigators should prepare accordingly. The Case Study Jim Smith is a dedicated paralegal. He focuses on his work and tries to steer clear of unnecessary workplace drama. But after testifying in support of a co-worker s claim of sexual harassment from a senior partner, Jim starts noticing icy stares from the firm s attorneys. One called him a traitor, and Jim s now starting to hear more whispers that he s on the outs with management. Uncoincidentally, Jim routinely draws dreaded document-review projects that are well-known to be the most undesirable work at the firm. After Jim is publicly berated for an error a young associate actually committed, then banished to a smaller workstation shortly thereafter, he s itching to file a charge himself. So what kind of claim could Jim pursue and what does he need to do to prove it? The answers lie in the developing body of law on retaliatory hostile work environments. Jim s case isn t an outlier; the statistics are clear. According to the Equal Employment Opportunity Commission (EEOC), Title VII retaliation charges have steadily increased since 1997 and have now overtaken race discrimination as the most frequently occurring charge. 1 And with this steady increase in claims, employment lawyers for both plaintiffs and defendants can expect to encounter if they haven t already more and more Title VII claims like that of our hypothetical paralegal. The success or failure of Jim s case will turn on the legal standard governing his claim of a retaliatory hostile work environment. Background Title VII has included an anti-retaliation provision since its adoption in Over the next 40 years, most circuit courts interpreted Title VII s anti-discrimination and anti-retaliation provisions coterminously. That is, to state a viable claim for retaliation under Title VII, an aggrieved employee must allege an adverse employment action, such as some adverse change in compensation or in the terms, conditions, or privileges of employment. 3 To fully understand the current issues arising in a retaliatory hostile-work-environment claim requires a brief review of two Supreme Court cases one expanding the reach of Title VII s anti-discrimination prohibition, and June 2017 THE FEDERAL LAWYER 47

3 another untethering Title VII s anti-discrimination and anti-retaliation provisions from one another. First, in Meritor Savings Bank v. Vinson, 4 the Supreme Court held that, even in the absence of economic effects on employment, conditions sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment were actionable under Title VII. 5 The Supreme Court clarified in 1993 s Harris v. Forklift Systems, Inc., that this inquiry requires consideration of both objective criteria (i.e., whether a reasonable person in plaintiff s position would find the environment hostile or abusive) and plaintiff s subjective perception (i.e., whether the plaintiff in fact found the working environment hostile). 6 In applying this standard, the Supreme Court instructed lower courts to evaluate all the circumstances, including: the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee s work performance. 7 While both Meritor and Harris addressed factual allegations of sexual harassment (i.e., a gender-based hostile work environment), language in each opinion specified that the same standards applied to hostile-work-environment claims based on each protected characteristic in Title VII s anti-discrimination provision. 8 Meritor and Harris did not expressly reference the availability of hostile-work-environment standards for a retaliation claim. EEOC guidance at that time suggested that the retaliatory hostile-work-environment cause of action was viable, albeit without fully explor[ing] the contours of such a claim. 9 Early cases exploring the availability of the claim found no obvious reason why the legal requirements of a claim for co-worker retaliatory harassment should not parallel those for gender- and race-based claims. 10 The Supreme Court arguably supplied such a reason in 2006 when it decided Burlington Northern & Santa Fe Railway Co. v. White. 11 In White, the Supreme Court rejected the argument that Title VII s anti-retaliation provision should be read in pari materia with the antidiscrimination provision, which would limit employer actions prohibited by the anti-retaliation provision to conduct that affects the employee s compensation, terms, conditions, or privileges of employment. 12 Adopting a standard originally articulated in the Seventh and District of Columbia Circuit Courts of Appeals, White held that a Title VII retaliation 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. 13 The Problem In sum, Meritor/Harris and White adopted two different standards plaintiffs must successfully plead and eventually prove to establish and recover for Title VII hostile-work-environment and retaliation claims, respectively. As explained above, the hostile-work-environment standard of Meritor/Harris originated in Title VII s anti-discrimination provision, whereas White exclusively addressed Title VII s anti-retaliation provision. While White expressly divorced the interpretation of Title VII s anti-retaliation provision from precedent addressing Title VII s anti-discrimination provision, White was conspicuously silent as to the implications its holding might have on claims for a retaliatory hostile work environment that, by 2006, several federal courts had explicitly recognized. Thus, when confronted with a hybrid claim of a retaliatory hostile work environment, post-white litigants and courts must harmonize, distinguish, or select between these standards. This resolution carries obvious and important implications on the parties pre-trial motion strategy and ultimate likelihood of success on the merits, as our hypothetical illustrates. 14 Because Meritor and Harris pre-date White, the briefs to the Supreme Court in White provide a fair starting point to investigate the genesis of this tension. In White, the plaintiff s counsel readily acknowledged favoring a standard for Title VII retaliation that would make even minor acts of retaliation actionable even though they may not meet the Meritor/Harris standard for a hostile work environment. 15 The defendant responded that, in the absence of a retaliatory adverse employment action, the Meritor/Harris standard should control in Title VII retaliatory hostile-work-environment cases since it would ensure that only retaliation that creates a seriously adverse change in working conditions may subject the employer to liability. 16 As one amicus similarly argued in support of defendant: If relentless sexual innuendo cannot be actionable as discrimination unless it renders the overall environment severely or pervasively hostile, it is not clear why much less harmful conduct should be actionable when it is alleged to be retaliatory. 17 Indeed, the defendant s counsel specifically predicted at oral argument that shunning conduct less than [a] hostile work environment could go to a jury if the Supreme Court adopted the Seventh and D.C. Circuit standard for Title VII retaliation claims. 18 The Current State of the Law Since White adopted a lesser, more employee-friendly standard for Title VII retaliation claims, the question then arises as to whether the more stringent Meritor/Harris standard, originally arising from Title VII s anti-discrimination provision, has any ongoing application to retaliatory hostile-work-environment claims. 19 The first case analyzing the effect of White on this cause of action was Khan v. HIP Centralized Laboratory Services Inc. 20 Khan acknowledged, as the White plaintiff s briefing suggested, that a lower standard for retaliatory hostile work environment claims may be appropriate. Another section of court in the Eastern District of New York rejected that suggestion, explaining that the Supreme Court found it necessary to impose a broader standard for retaliation claims than the Second Circuit and some other circuits had applied to accomplish the anti-retaliation purposes of 704, but there is no indication that the Supreme Court also felt it necessary to expand the reach of retaliatory hostile work environment claims. 21 Then-Chief District Judge Royce C. Lamberth in the District of Columbia authored perhaps the most detailed analysis of White s impact. In Bergbauer v. Mabus, Judge Lamberth acknowledged, as did Khan, that White calls into question how courts have since analyzed retaliatory hostile-work-environment claims. 22 Because White disassociated retaliation claims from statutory language in Title VII s anti-discrimination provision, importing hostile-work-environment standards from Title VII s anti-discrimination provision back into Title VII s anti-retaliation provision would appear to perpetuate the error White sought to correct. Thus, Bergbauer posits: Rather than asking whether retaliatory harassment was so severe or pervasive as to alter the terms and conditions of employment, courts would ask whether the harassment would deter a reasonable employee from engaging in protected activity. 23 And while Judge Lamberth 48 THE FEDERAL LAWYER June 2017

4 concluded that White logically suggests that courts apply a different standard to retaliatory hostile-work-environment claims, Bergbauer, nonetheless, applied the Meritor/Harris severe-or-pervasive standard under existing D.C. Circuit precedent. 24 Other post-white cases addressing retaliatory hostile work environments fall into two basic categories: (1) those that have abandoned the Meritor/Harris severe-or-pervasive standard in favor of the lesser White standard 25 and (2) those that continue to apply the Meritor/Harris severe-or-pervasive-harassment standard to a retaliatory hostile-work-environment claim despite White. 26 A closer examination of the case law, however, reveals both continued confusion and a resultant opportunity for Title VII litigators to favorably develop the law in their respective districts and circuits. For example, while the Third Circuit in Moore rejected the Meritor/Harris standard for a retaliatory hostile-work-environment claim post-white, it cited and applied the Meritor/Harris standard in a later, unpublished opinion addressing a retaliatory hostile work environment. 27 Likewise, while some lower courts have claimed that the First Circuit adopted the White standard for retaliatory hostile-work-environment claims, the First Circuit s opinion cited both the White and Meritor/Harris standards in the same paragraph. 28 The Eighth Circuit also appeared to adopt the White standard, though it did so in a case arising under the anti-retaliation provisions of the Age Discrimination in Employment Act and Americans with Disabilities Act, not Title VII. 29 The circuit courts that continue to apply the Meritor/Harris standard for a retaliatory hostile work environment post-white have done so without analyzing in detail the interplay between the two lines of authority. So, for instance, while the Seventh Circuit found no reason retaliation-based actions by an employer must somehow be less objectively offensive than in the context of sex or race in applying the Meritor/Harris standard, it confusingly cited White as its authority for the proposition. 30 Several other circuits have either not addressed the existence of retaliatory hostile-work-environment claims in the first instance, or have not firmly committed to a post- White standard to evaluate Title VII plaintiffs allegations. 31 Some Recommendations for the Path Forward To adequately account for the differing standards and uncertainty in circuit-court precedent, some federal district courts analyze Title VII retaliatory hostile-work-environment claims under both the Meritor/ Harris and White standards. 32 That is, if a plaintiff alleges and proves events establishing severe-or-pervasive retaliatory harassment under the Meritor/Harris standard, that will also suffice to satisfy the lesser White standard. The contrapositive is also true. That is, a plaintiff s failure to plead and prove events satisfying the White standard necessarily denotes a contemporaneous failure to satisfy the more rigorous Meritor/Harris standard. This binary paradigm, however, isn t exclusive. Some Title VII plaintiffs, like our hypothetical paralegal Jim, may satisfy White, but not Meritor/Harris. 33 It is unlikely that the Supreme Court or Congress will resolve this issue in the near future. Thus, counsel for both parties to a Title VII retaliatory hostile-work-environment claim in district court should with due consideration and recognition of any respective circuit precedent address both the Meritor/Harris and White standards in pleadings and motion practice. In doing so, however, counsel should also push district and circuit courts to analyze, address, and, where appropriate, resolve the divergent standards to provide clarity to litigants and their counsel. Indeed, if a Title VII retaliatory hostile-work-environment claim goes to trial, the court must adopt a standard to charge the jury on plaintiff s burden of proof. Thus, counsel should highlight and brief the issue to the court at the earliest occasion in the case to create a foundation for future success at a later jury-charge conference. In that briefing, counsel for Title VII plaintiffs will undoubtedly ask courts to adopt the Third Circuit s approach in Moore, utilizing the White standard to the exclusion of the Meritor/Harris standard. Judge Lamberth s analysis in Bergbauer outlines persuasive arguments in favor of that holding. 34 Title VII plaintiffs may also argue that the Supreme Court in White adopted a standard unique to Title VII s anti-retaliation provision that is flexible enough to address both retaliatory harassment and adverse employment actions. Moreover, the same textual analysis White employed to reject a coterminous interpretation of Title VII s anti-discrimination and anti-retaliation provisions would justify a lesser standard for a retaliatory hostile-work-environment claim than would apply if the hostile work environment was predicated on racial or gender-based animus. Meanwhile, counsel for Title VII defendants will continue to assert that the Meritor/Harris severe-or-pervasive standard should govern all claims for a hostile work environment, regardless of the Title VII protected characteristic (e.g., race, gender, etc.) or behavior (e.g., engagement in protected activity) implicated. In charting this course, defendants will enjoy a tailwind since the weight of existing case law favors the Meritor/Harris approach for a retaliatory hostile-work-environment claim. The analytical justifications in the case law post-white, however, are thus far lacking. Defendants counsel will argue that the White plaintiff did not assert a retaliatory hostile-work-environment claim. 35 Moreover, the Supreme Court in White gave no indication that it intended to upset or limit the application of the Meritor/Harris standard, which by 2006 was established precedent in many federal courts governing hostile-work-environment claims predicated on the full panoply of Title VII s protected characteristics and behavior. 36 Conclusion Employment-law litigators handling Title VII retaliatory hostile-work-environment claims enjoy a unique opportunity to shape and influence the law in their districts and circuits. Skilled litigators should marshal, develop, and aggressively assert legal arguments and policy justifications in favor of the White or Meritor/Harris standards whenever confronted with a retaliatory hostile-work-environment claim. Guiding federal courts to resolve this legal standard would provide needed certainty and predictability for all parties in Title VII litigation. Endnotes Peter M. Mansfield is an assistant U.S. attorney and chief of the civil division for the U.S. Attorney s Office in the Eastern District of Louisiana, New Orleans. This article reflects the personal views of the author and does not constitute official-capacity guidance from the United States Department of Justice. 1 Charge Statistics: FY 1997 Through FY 2016, U.S. Equal Opportunity Emp t Comm n, (last visited Dec. 1, 2016). June 2017 THE FEDERAL LAWYER 49

5 2 See Pub. L. No , Title VII, 704 (July 2, 1964) (codified at 42 U.S.C. 2000e-3(a)). 3 Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 75 (2006) (Alito, J., concurring in judgment). 4 Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986). 5 Id. at Harris v. Forklift Sys., Inc., 510 U.S. 17, (1993). 7 Id. at Id. at 22 ( [T]he very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their race, gender, religion, or national origin offends Title VII s broad rule of workplace equality. ); Meritor, 477 U.S. at 66 (citing cases applying hostile-work-environment principles to race, religion, and national-origin claims). 9 Davis v. State of Calif. Dep t of Corr., 1996 WL , at *11 (E.D. Cal. Feb. 23, 1996) (citing EEOC Compliance Manual as persuasive authority for existence of a retaliatory hostile-workenvironment claim under Title VII); see also Mattern v. Eastman Kodak Co., 104 F.3d 702, 711 (5th Cir. 1997) (Dennis, J., dissenting). 10 Davis at *12; see also Fleming v. S.C. Dep t of Corr., 952 F. Supp. 283, 290 (D.S.C. 1996); Reilly v. Metro-N. Commuter R. Co., 1996 WL , at *10 (S.D.N.Y. Nov. 15, 1996); Bryant v. Brownlee, 265 F. Supp. 2d 52, (D.D.C. 2003). 11 Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). 12 Id. at 61. The Supreme Court also rejected a more exacting standard that required proof of an ultimate employment decision to recover under Title VII s anti-retaliation provision. Id. at Id. at 68 (internal quotation marks and citations omitted). 14 See also Sclafani v. PC Richard & Son, 668 F. Supp. 2d 423, 439 n.9 (E.D.N.Y. 2009) ( [A] plaintiff could theoretically be subject to materially adverse actions that might have dissuaded a reasonable worker from making or supporting a charge of discrimination, but not sufficiently severe or pervasive. ) (internal quotation marks and citations omitted). This is likely the case for our paralegal Jim Smith. While his working environment likely does not demonstrate severeor-pervasive retaliatory harassment sufficient to change the actual conditions of his employment, those same events could be construed as sufficient to dissuade a reasonable person from engaging in protected activity. 15 Brief for Respondent at 15-16, Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (No ), 2006 WL , at * Brief for Petitioner at 32, Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (No ), 2006 WL , at * Brief for Amicus Curiae the Association of American Railroads in Support of Petitioner at 11, Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (No ), 2006 WL , at * Transcript of Oral Argument at 35, Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (No ), 2006 WL , at * In the 20-plus years since the Supreme Court decided Meritor, most federal courts have by now recognized a Title VII cause of action for a retaliatory hostile work environment. The two exceptions are the Fifth and Tenth Circuits. See Tejada v. Travis Ass n for the Blind, 617 F. App x 325, 328 (5th Cir. 2015) ( This court has yet to determine whether a Title VII retaliation claim based on a hostile work environment is cognizable. ); Kline v. Utah Anti- Discrimination & Labor Div., 418 F. App x 774, 781 n.2 (10th Cir. 2011) ( [C]auses of action for retaliatory hostile work environment have not been formally recognized by the Tenth Circuit. ). The Fifth Circuit has also avoided addressing what effects Burlington Northern (i.e., White) were to have on the plaintiff s burden to prove actionable harm for a retaliatory hostile-work-environment claim. Bryan v. Chertoff, 217 F. App x 289, 293 (5th Cir. 2007). Notably, before White, the Fifth Circuit had previously required an ultimate employment decision to state a Title VII retaliation claim, see Mattern, 104 F.3d at , which necessarily excluded retaliatory harassment that did not culminate in granting leave, discharging, promoting, or compensating. Id.; see also supra note Khan v. HIP Centralized Lab. Servs. Inc., 2007 WL (E.D.N.Y. Mar. 30, 2007). 21 Ezuma v. City Univ. of N.Y., 665 F. Supp. 2d 116, 126 (E.D.N.Y. 2009). 22 Bergbauer v. Mabus, 934 F. Supp. 2d 55, 80 (D.D.C. 2013). 23 Id. at Id. at Moore v. City of Philadelphia, 461 F.3d 331, (3d Cir. 2006); Stewart v. Indep. Sch. Dist. No. 196, 481 F.3d 1034, 1042 (8th Cir. 2007). 26 Baird v. Gotbaum, 792 F.3d 166, 169 (D.C. Cir. 2015); Boss v. Castro, 816 F.3d 910, 920 (7th Cir. 2016); Gowski v. Peake, 682 F.3d 1299, 1312 (11th Cir. 2012); Khamati v. Sec y of Dep t of the Treasury, 557 F. App x 434, 443 (6th Cir. 2015). 27 Harley v. U.S. Sec y of Treasury, 444 F. App x 594, 595 (3d Cir. 2011). 28 Alvarado v. Donahoe, 687 F.3d 453, 461 (1st Cir. 2012). 29 Stewart, 481 F.3d at Boss, 816 F.3d at See supra note Griffin v. Texas Dep t of State Health Servs., 2011 WL , at *4 (S.D. Tex. Feb. 24, 2011); Cajamarca v. Regal Entm t Grp., 863 F. Supp. 2d 237, 254 (E.D.N.Y. 2012); Clarke v. DynCorp Int l LLC, 962 F. Supp. 2d 781, 790 (D. Md. 2013); Komis v. Perez, 2014 WL , at *3 (E.D. Pa. July 15, 2014); Matthews v. Corning Inc., 77 F. Supp. 3d 275, 297 (W.D.N.Y. 2014). 33 See supra note See supra notes White v. Burlington N. & Santa Fe R. Co., 364 F.3d 789, 796 n.1 (6th Cir. 2004); Bergbauer, 934 F. Supp. 2d at Relatedly, in courts favoring the White standard, defendants counsel will likely seek clarity on the interplay, if any, between the White standard and the Faragher/Ellerth affirmative defense. See White, 548 U.S. at This issue is beyond the limited scope of this article, but for additional reading on the topic see Irene Gamer, The Retaliatory Harassment Claim: Expanding Employer Liability in Title VII Lawsuits, 3 Seton Hall Circuit Rev. 269, (Fall 2006). 50 THE FEDERAL LAWYER June 2017