27 Sep Co-Worker Retaliation under Title VII

One of my employees, after alleging that a popular supervisor sexually harassed her, has also claimed to have been repeatedly harassed by several coworkers angry at her for filing a complaint against this supervisor, with whom they are friends. Could the coworkers’ actions lead to a claim of retaliation under Title VII of the Civil Rights Act?

Yes. In addition to prohibiting sexual harassment in the workplace, Title VII of the Civil Rights Act (Title VII) makes it illegal to retaliate against an employee for making a claim of sexual harassment. Title VII’s anti-retaliation provision protects employees from conduct that would have “dissuaded a reasonable worker from making or supporting a charge of discrimination” under Title VII. The fact that an employer can be held liable for the retaliatory actions of a supervisor is well settled. However, the process for determining whether or not Title VII liability exists for the retaliatory actions of a coworker (i.e., someone without supervisory authority) is not as clear. Noting the inconsistent manner in which this issue has been handled by the federal courts, the Sixth Circuit Court of Appeals recently joined the majority of federal circuit courts that have determined that Title VII does, in fact, protect against coworker retaliatory harassment that is known to, but not restrained by, the employer.

Specifically, the Sixth Circuit agreed that there was “no reason ‘why a different form of retaliation – namely, retaliating against a complainant by permitting her fellow employees to punish her for invoking her rights under Title VII – does not fall within [Title VII’s protection].'” Thus, employers in the majority of jurisdictions must protect their employees against retaliation by coworkers. However, each federal circuit requires a different standard of behavior for determining whether to impose liability on employers for coworkers’ retaliatory acts. Accordingly, employers should consult a licensed professional to learn the applicable standard followed in a specific jurisdiction.