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.”