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It has long been settled that mistreatment based prohibited characteristics (such as race or sex) is actionable under Title VII even without a tangible employment action – e.g., termination, demotion, or pay cut. These are often referred to as hostile-environment claims. A hostile-environment claim under Title VII requires evidence of mistreatment that is sufficiently severe or persuasive that it can be said to alter the terms or conditions of employment. This measure is meant to draw a dividing line between trivial slights and substantial discrimination.

Nearly a decade ago, the Supreme Court clarified that mistreatment based on retaliation for protected conduct is likewise actionable under Title VII without a tangible employment action. However, the test is different. A retaliatory-hostile-environment claim is actionable when the mistreatment “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 57 (2006).

Accordingly, when dealing with hostile environment caused by retaliation, the court must ask if the mistreatment would have dissuaded a reasonable worker from making a claim of discrimination. When confronted with a hostile-environment-claim stemming from race or sex, the court must ask if the mistreatment was sufficiently severe or persuasive to alter the conditions employment.

Although this dichotomy has long been viewed as settled law, there exists an outlier case in the Eleventh Circuit applying the old standard: Gowski v. Peake, 682 F.3d 1299, 1312 (11th Cir. 2012). In Gowski, the court remarked that a retaliatory-hostile-environment claim still required proof that the mistreatment was “sufficiently severe or pervasive to alter the terms and conditions of employment, thus constituting an adverse employment action.” Gowski, 682 F.3d at 1312.

The Eleventh Circuit has now clarified its position—Gowski is a dead letter.

Monahan v. Worldpay, No. 17-14333 (11th Cir. Apr. 2, 2020)

In 2014, Atlanta-based Worldpay U.S. Inc. hired Susan Monaghan to work as an executive assistant. Although brief, Monaghan’s tenure was marred with conflict. Her immediate supervisor, a black female, made a number of race-and age-based comments that Monaghan reported to other executives. The complaints were not well received. According to Monaghan, she was told to stop complaining because “Worldpay did not want to get sued.”

Things further escalated when Monaghan’s supervisor learned of the complaints. She called Monaghan into “a conference room and berated her for about 45 minutes.” Monaghan was told “she was fucked” and “her days working for Worldpay were numbered.” Several executives were aware of what occurred, but they did nothing. Monaghan was briefly assigned to another supervisor, but this person allegedly ignored her.

Worldpay elected to terminate Monaghan at the conclusion of her 90-day probationary period, claiming a “lack of confidence, lack of trust, and lack of teamwork.” But Monaghan heard she was being discharged for “complain[ing] and complain[ing]” to the executives, that they were tired of her “complaining,” and she did not “fit in with” Worldpay. Monaghan filed suit raising a host of claims, including retaliation under Title VII.

Worldpay moved for summary judgment at the conclusion of discovery. The district court liberally interpreted Monaghan’s complaint as raising two theories of retaliation: Worldpay retaliated against her

  1. when it terminated her employment because of her protected activity (i.e., the complaints), and
  2. when her supervisor created a hostile work environment after learning of the complaints.

The court conceptualized the second theory as a “retaliatory hostile work environment claim,” and borrowing from Gowski, concluded that the alleged retaliation had to be sufficiently severe or persuasive to alter the conditions of Monaghan’s employment. After examining the record, the district concluded that Monaghan could not meet this threshold, and her hostile work environment claim accordingly failed.

Eleventh Circuit Ditches Gowski

The Eleventh Circuit reversed on appeal, concluding the district court applied the wrong standard. Mistreatment based on retaliation is actionable whether or not it is “severe or pervasive.” Claims of this kind instead arise if the mistreatment “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Accordingly, the district court erred by focusing on whether Monaghan experienced severe or pervasive mistreatment at the hands of her supervisor. As for Gowski, the Court concluded it was wrongly decided. The Supreme Court’s standard controls in all claims alleging retaliation:

retaliation is material if it well might have dissuade[d] a reasonable worker from making or supporting a charge of discrimination.”

Decision Creates Lower Standard

Although largely academic, the ruling in Monaghan has real world consequences. Claimants who would otherwise be barred under Title VII for failure to show an alteration to the terms or conditions of employment have a better chance of reaching the courthouse steps. The retaliation standard protects employees more broadly—and is more easily satisfied—than the standard applicable to claims of discrimination.