Realizing the potential of the joint harassment/retaliation claim.

• Author: Jain, Eisha

INTRODUCTION I. THE RELATIONSHIP BETWEEN HARASSMENT AND RETALIATION A. Why Study Harassment and Retaliation Together? B. The Legal Regimes of the Claims II. TRENDS IN JUDICIAL ASSESSMENT OF HARASSMENT AND RETALIATION CLAIMS A. Disaggregation of Hostile Work Environment from Retaliation B. Applying the Ellerth Affirmative Defense to Retaliation C. Court Construction of Retaliation Post-Burlington Northern D. Consequences of Disaggregating Retaliation from Harassment 1. Tolling 2. Damages III. TOWARD REALIZING THE POTENTIAL OF THE JOINT HARASSMENT/RETALIATION CLAIM A. Case Study of an Integrated Claim B. Recommendations for Reaching an Integrated Understanding of Joint Claims CONCLUSION INTRODUCTION

Consider the following scenario: soon after an employee begins a new job, her coworkers proposition her for sexual favors and make lewd and sexist jokes around her. The employee believes she is being sexually harassed and informs her supervisor of the behavior. Soon afterward, her working environment changes for the worse: her coworkers sabotage her workspace, scratch her car, and refuse to provide her with routine job assistance. Ultimately, she resigns and files a suit under Title VII, claiming sex-based hostile work environment harassment and unlawful retaliation.

Data from social science studies and statistics from the Equal Employment Opportunity Commission (EEOC) suggest that scenarios like this one--where a plaintiff experiences harassment alongside retaliation-are pervasive. Yet courts have not reached a consensus about how to conceptualize such situations. One response has been to disaggregate the situation into two separate claims, treating the precomplaint behavior as constituting sex harassment and considering the postcomplaint behavior as constituting retaliation alone. Alternatively, some courts have understood the entire set of behavior as hostile work environment harassment, with postcomplaint behavior understood as escalated harassment, retaliation, or both.

Courts often draw distinctions between the claims without sufficiently examining why the doctrinal boundaries have been drawn the way they have. Fragmented understandings of harassment and discrimination in turn undermine the potential of the two claims to redress discrimination by misconstruing or failing to recognize how discriminatory dynamics operate in the workplace. The lack of judicial consensus over joint claims extends to the basic legal elements of retaliation and harassment, such as causation, evidentiary burdens, and employer liability, and results in part from the absence of a coherent framework for understanding retaliation and harassment when they occur together. This gap is evident in scholarship as well. While hostile work environment harassment' and retaliation (2) have each received considerable academic attention in their own right (harassment more so than retaliation), little research has been done into how they operate--and how they should be understood--when they occur in concert.

This Note seeks to bridge some of the gap in the literature. It argues that joint claims of hostile work environment harassment and retaliation have the potential to allow courts to redress dynamic forms of exclusion in the workplace, because each claim focuses upon a distinct type of harm. The harassment inquiry focuses on why and how individuals were singled out for adverse treatment, and asks whether such treatment hinders an individual's ability to pursue her work because of a protected characteristic. The retaliation inquiry, by contrast, focuses upon the conduct of a person in opposing discrimination, and asks whether the actions of the employer or coworkers could function to suppress an employee's oppositional behavior. When both claims are brought together, courts have the opportunity to recognize dynamic interactions between conduct-based and status-based forms of exclusion in the workplace. This potential has been largely unrealized, however, due to courts' failure to recognize harassment and retaliation as distinct, yet overlapping, forms of behavior.

Part I demonstrates the need for research into the joint harassment and retaliation claim by drawing on social science research and case law that illustrates how harassment and retaliation commonly interact in the workplace. I contend not only that harassment and retaliation frequently occur together, but also that they interact to shape how an individual experiences discrimination. Ongoing harassment coupled with retaliation serves not only to exclude members of protected groups who have already experienced discrimination, but also to punish them for daring to challenge their relegation to the margins of the workplace. I then discuss how the distinct legal inquiries of the harassment and retaliation claims, when employed in concert, hold the potential to address patterns of exclusion that neither claim can reach alone.

Part II surveys how appellate courts have addressed joint harassment/retaliation claims and offers three case studies to identify trends in court treatment of such claims. Part II identifies a number of ways that courts have disaggregated behavior understood as retaliatory from behavior understood as discriminatory in a way that unjustifiably narrows the reach of each claim. I also discuss application of the Burlington Industries v. Ellerth (3) "affirmative defense" to cases of retaliatory harassment. Applying Ellerth allows employers to escape liability if they can show that they neither "knew nor should have known" about the retaliation, or that they took reasonable measures to remedy it. (4) I critique the application of the Ellerth defense in light of the Supreme Court's recent decision in Burlington Northern & Santa Fe Railway Co. v. White, (5) which indicated that retaliation plaintiffs arguably deserve greater protection than even discrimination plaintiffs under Title VII. I then discuss additional consequences of court disaggregation of the claims on tolling and damages.

Part III discusses doctrinal ways to realize the potential of the joint harassment and retaliation claims. Through a case study of an integrated claim, Part III outlines how courts can conceptualize joint claims in a way that more fully realizes how retaliation and harassment interact in the workplace. This Note concludes with specific recommendations for how courts can understand status-based and conduct-based forms of exclusion in an integrated way.

1. THE RELATIONSHIP BETWEEN HARASSMENT AND RETALIATION

   Harassment and retaliation are closely related. Retaliation not only often accompanies harassment, but it also affects how individuals respond to harassment. On one level, retaliation or threat of retaliation minimizes assertive responses to discrimination, causing targets of harassment to choose not to confront harassers, not to report harassment, or not to file discrimination claims. On another level, retaliation works to underscore and amplify the effects of harassment: it further excludes the target of harassment, while also punishing her for attempting to challenge discriminatory behavior. This Part assesses how retaliation and harassment commonly interact in the workplace. It then turns to the legal regimes of the harassment and retaliation claims. Although retaliation and harassment frequently occur in tandem, they are addressed under distinct and nonoverlapping doctrinal frameworks. The retaliation inquiry focuses on the individual's conduct in opposing discrimination, while the harassment inquiry focuses on whether an individual was targeted for discrimination on the basis of her membership in a protected class. Because each claim involves a distinct inquiry, the joint application of these two inquiries holds potential to allow courts to understand how status- and conduct-based forms of exclusion can operate simultaneously to maintain and police discriminatory norms in the workplace.

   1. Why Study Harassment and Retaliation Together?

      Retaliation relates to harassment on a number of levels. First, the threat of retaliation discourages employees from confronting harassment. According to one study, an estimated seventy percent of sexual harassment victims who do not file discrimination claims cite fear of retaliation as a "moderate or strong influence on their decision" not to report the harassment. (6) The threat of retaliation deters even those employees who profess a strong belief in the importance of preventing harassment from confronting it when faced with it themselves, largely because of their belief that confronting or reporting harassment can come at a high professional price. (7) Unfortunately, this perception turns out to be correct much of the time. A number of social science studies have found not only that confronting discrimination carries penalties in the workplace, but also that the most assertive responses to harassment--such as filing formal discrimination claims about the behavior--incur the strongest backlash, with retaliation in the form of negative job evaluations, loss of promotions, adverse transfers, and terminations. (8) According to one study, one-third of victims who filed formal claims about harassment reported that it actually "made things worse" for them on the job. (9) As a result of these dynamics, few victims of harassment confront the behavior directly, choosing instead to engage in passive tactics such as avoiding the harasser or ignoring the harassment. (10) Only one percent of all targets of harassment choose the most assertive response and actually file a claim of discrimination in court. (11)

      In addition to tangible forms of retaliation, such as adverse transfers or demotions, those who speak out about discrimination face a social cost in the workplace as well. In her recent article on retaliation, Deborah Brake discusses a series of social studies demonstrating that women who confront coworkers who make sexist comments, or even complain...