Retaliatory Harassment Actionable under Title VII


In a case of first impression, the U.S. Sixth Circuit Court of Appeals has determined that retaliatory harassment by a supervisor of an employee who has complained of other harassment (such as race, sex, handicap, etc.) is actionable under Title VII , even if the underlying harassment is not actionable.

Retaliatory Harassment

In Morris v Oldham Fiscal Court, John W Black and Brent Likins (January 20, 2000), a long-term secretary in the County Road Department complained that she was sexually harassed by her new supervisor, County Road Engineer Brent Likins. The initial harassment included jokes with sexual overtones, referring to the secretary as "Hot Lips," and comments about her state of dress. The most damaging allegation was that the supervisor told the secretary in front of another supervisor that if she would come into his office, by the time they were finished, she would get an "excellent" evaluation. Both the secretary and the witnessing supervisor construed this remark as meaning that if the secretary provided sexual favors, she could improve her evaluation rating.

The secretary complained about these incidents to County Judge John Black, who advised both parties to "work out any problems and differences." After this complaint, the supervisor became excessively critical and gave the secretary the "cold shoulder." After further complaints, the judge transferred the supervisor's office from the Road Department to the County Courthouse out of concern "about everyone's working environment." He further ordered the supervisor not to communicate directly with the secretary and not to be around her without a third person present.

Continued Harassment

Despite this directive, the supervising engineer visited the Road Department alone at least 15 times, called the secretary on the phone at least 30 times, drove to the Road Department to sit outside the secretary's window and make faces, followed her home and gave her "the finger," destroyed the television set she watched at the Road Department, and on many occasions, threw roofing nails on her home driveway. These actions caused the secretary to have anxiety attacks. She eventually took a disability leave and sued, alleging sexual and retaliatory harassment by her supervisor with the assistance or acquiescence of county supervisors, under both Title VII and the Kentucky civil rights act .

The trial court dismissed the claims in their entirety, but the Sixth Circuit reversed the lower court's dismissal of the retaliatory harassment claim. The Sixth Circuit ruled that an employer could be held liable for retaliatory harassment by a supervisor that culminates "in a tangible employment action, such as discharge, demotion or undesirable assignment," even if the underlying harassment is not actionable.

Retaliatory Harassment by Itself Not Actionable

The court made clear that retaliatory harassment, in and of itself, does not constitute a "tangible employment action ." Therefore, as with sexual harassment claims, when there is no tangible employment action, the employer has the opportunity to raise the affirmative defense that (1) the employer exercised reasonable care to prevent and promptly correct any harassing behavior and (2) that the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer to avoid harm. As with sexual harassment claims, the employer must prove both elements of the affirmative defense to prevail.

To establish retaliatory harassment, an employee must show:

  1. She opposed a violation of Title VII;
  2. Her employer was aware of her opposition;
  3. The employer subsequently took adverse action or a supervisor engaged in severe or pervasive retaliatory harassment and
  4. A causal connection between the opposition and the adverse action or harassment.

Supervisors Need Training

This newly recognized claim for retaliatory harassment makes it even more important for employers to police the conduct of supervisors. An employers must impress upon its supervisors that it will not tolerate inappropriate harassment -- whether sexually or racially motivated or motivated by revenge for an employee's report of harassment.

In this case, even moving the supervisor's office location did not prevent further harassment and retaliation. Employers must monitor post-complaint interactions between a complainant and the alleged harasser. We also recommend that a designated representative follow up with the complainant periodically to prevent her from being ostracized, or worse, by co-workers or supervisors.

Note: the judge's initial reaction of telling the parties to work things out probably created the atmosphere in which the alleged harasser felt he could get away with his retaliation. The county might have avoided this litigation if the secretary's initial complaint had been treated more professionally.