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.”

Continue Reading Eleventh Circuit Clarifies Standard for Retaliation Under Title VII

Eeoc_logo2Thanks to Richard Cohen and his Employment Discrimination Report blog and the Washington Post for focusing attention on the recent report by the U.S. Equal Employment Opportunity Commission (EEOC) about the rapid increase in retaliation claims in the workplace. For years, employment discrimination complaints (i.e., claims by employees that they were discriminated against on the basis of one or more protected factors like race, gender, national origin, age, etc.) were at the top of the EEOC charts as far as number of claims filed. However, as noted back in January 2013, since 2010 there have been more retaliation claims filed with the EEOC than any type of discrimination claim.

The big increase involves claims filed by eligible employees (those who work for employers with at least 15 employees and most public employers) that they were demoted, fired, transferred, denied a raise or a promotion or similar complaints in retaliation for having complained about race, gender, age or other types of discrimination – sometimes even where the alleged discrimination involved someone else. According to the EEOC, a record 38,539 retaliation charges were filed in fiscal year 2013.

The statistics for Florida are similar. In 2013, a total of 3,095 retaliation claims were filed, representing about 41% of the complaints filed with Florida offices of the EEOC. This compares to 2,533 race discrimination complaints, representing 33% of all charges filed.

What accounts for the increase?

Continue Reading Employee Retaliation Claims Continue to Rise

Consider this hypothetical.whistleblower Qiqi Green Whistle by Steven Depolo under Creative Commons

Erin Bragovich works in the permitting department of Shortcut Land Development Company (“Shortcut”). In a phone call, Erin tells her supervisor that she believes that Shortcut is violating a local zoning ordinance enacted by Sunshine City. Immediately after telling her manager about the suspected zoning violation, Erin files a sworn complaint with the Sunshine City Zoning Department reporting the violation. Shortcut fires Erin after it learns about her complaint.

Which of the following statements is correct?

A.  Erin has a claim for whistleblower protection if she had a good faith belief that Shortcut was violating a zoning ordinance, even if there was no actual violation.

B.  Erin has a claim for whistleblower protection because her complaint to the City’s Zoning Department represents a valid exercise of her First Amendment Right to Free Speech.

C.  Erin does not have a claim for whistleblower protection because she did not disclose the violation to her supervisor in writing, nor did she give Shortcut a reasonable opportunity to correct the violation before she made the report to the Zoning Department.

D.  Erin does not have a claim for whistleblower protection because the subject of her disclosure was the violation of a local ordinance, not a violation of state or federal law.

Continue Reading Employment Law IQ: Retaliation and Whistleblower Liability

hurted hand and work injury claim formConsider the following scenario:

Wynona Whiner is hired as a file clerk for a local law firm. Wynona gets a paper cut on her second day at work and files a workers’ compensation claim. Wynona’s doctor takes her off work for three days after the cut becomes infected over the weekend. On Monday, Wynona presents the law firm with the doctor’s note stating that she can return to work on Tuesday. However, Wynona does not return to work until the following Monday. When she returns to work, the law firm terminates Wynona under the firm’s no call, no show policy.

Which of the following statements is correct?

A.  Wynona may not bring a retaliation claim if her workers’ compensation claim is denied.

B.  Wynona may not bring a claim for retaliation because she was fired during her 90-day probationary period.

C.  Wynona will prevail on a claim for retaliation because she was fired within three months of filing a workers’ compensation claim.

D.  Wynona may have a claim for retaliation if the no call, no show policy has only been enforced against employees who have filed workers’ compensation claims.

Continue Reading Employment Law IQ: Workers’ Compensation Claims and Retaliation – What Would You Do?