Christine Fuqua Gay is an Associate in our
Miami office and Lindsay Dennis Swiger an Associate in our
The Eleventh Circuit joined 10 of its sister circuits, on June
4, 2012, in recognizing retaliatory hostile work environment as a
viable claim under Title VII, finding that such a claim is
consistent with the statutory text, congressional intent and the
EEOC's own interpretation of the statute. Gowski v.
Peake, No. 09-16371 (11th Cir. June 4, 2012).
Evidence Establishes Intent and Years of Abuse
In Gowski, two doctors claimed that they were subjected
to a hostile work environment in retaliation for filing EEOC
charges two years prior. At trial, the doctors presented evidence
that their supervisors made a concerted effort to retaliate against
any employee who filed an EEOC charge, including doctors, by
targeting employees who filed complaints, spreading rumors about
the doctors, attempting to ruin their reputations and careers,
using other doctors as "moles" to find potentially
damaging information about the doctors and encouraging other staff
members to submit reports about their allegedly poor performance.
Numerous doctors and staff left the hospital over a two-year period
to avoid being targeted. Several staff members testified at trial
that if they did not go along with the scheme, they would be
targeted as well.
In addition, the hospital instructed other doctors to encourage
the plaintiffs to resign, maligned the targeted doctors in front of
their peers and co-workers, removed them from committees and
projects, prohibited them from conducting research, reassigned them
to different areas in the hospital (with a reduction in pay) and
gave them low proficiency ratings.
The doctors sued, alleging that they had been harassed in
retaliation for their EEOC charges in violation of Title VII. A
jury awarded one plaintiff $250,000 in emotional damages and the
other $1 million in emotional damages (reduced to $300,000 under
the statutory cap), as well as attorneys' fees.
On appeal, without hesitation, the Eleventh Circuit held that
Title VII prohibits retaliatory hostile work environment
discrimination. The court noted that this conclusion is consistent
with Title VII's remedial goals and prevents supervisors from
deterring protected conduct.
Terms and Conditions of Employment
Having recognized this cause of action, the court upheld the
jury's verdict, and, applying the familiar standard applicable
to hostile work environment claims based on sex, found that the
behavior complained of by the doctors was sufficiently severe and
pervasive to alter the terms and conditions of the doctors'
employment. The court also found that the retaliatory intent was
well known and continued over a period of years. Further, several
other staff members testified that they chose not to file EEOC
charges out of fear of retaliation.
The court did state that discrete adverse acts, such as
reassignment, cannot alone form the basis of a hostile work
environment claim, but that the jury could consider discrete acts
as part of the evidence establishing a hostile environment. The
employer tried to argue that discrete acts should not be considered
because it showed it would have made the same decisions anyway, and
retaliation was not the "but for" cause of the discrete
events. But the Eleventh Circuit rejected that argument and stated
that although the same decision defense may have precluded
liability for each of the individual acts of retaliation, it could
not eliminate liability for the hostile work environment when the
acts were taken collectively. Indeed, the court reasoned that to
allow the same decision defense to eliminate "but for"
causation in a hostile work environment claim "would
essentially do away with the claim."
Employers Need to Review Policies
Now that the Eleventh Circuit has confirmed that retaliatory
hostile work environment is a viable cause of action under Title
VII, employers should review their policies and ensure that those
policies prohibit such behavior against any individual who has made
a complaint of discrimination or harassment. Additionally,
employers should take this opportunity to meet with their
supervisors to ensure that no one engages in actions that could be
found to create a retaliatory hostile work environment.
A female employee traveling for her employer met a "friend" and at her motel room with him became "injured whilst engaging in sexual intercourse when a glass light fitting above the bed was pulled from its mount and fell on her."