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Retaliatory Hostile Work Environment Claim Recognized in Eleventh Circuit

The Eleventh Circuit is the last appellate circuit to formally recognize a retaliatory hostile work environment claim.  In Gowski v. Peake, 682 F.3d 1299 (11th Cir. June 4, 2012) the court found that recognition of such a cause of action is consistent with the statutory text of Title VII, congressional intent, and the EEOC’s own interpretation of Title VII. Additionally, the court held that recognizing a retaliatory hostile work environment claim is consistent with Title VII’s remedial goal and prevents supervisors from deterring protected conduct, such as filing an EEO complaint against one’s employer.

In Bowski v. Peake, the jury found that the plaintiffs, two doctors employed at a Florida hospital, were subject to a retaliatory hostile work environment after they filed EEO complaints against the hospital management. The Eleventh Circuit affirmed the finding that plaintiffs demonstrated that they were retaliated against after they filed EEO complaints. The retaliatory acts included changing duty assignments, denying privileges, reprimands, suspensions, soliciting complaints, lowering proficiency reports, and denying access to the grievance and appeals process, among other retaliatory acts. The plaintiffs further demonstrated that the hospital management carried out a “retaliatory scheme” designed to remove employees who filed EEO complaints by (a) targeting employees who filed complaints; (b) spreading rumors about those employees; (c) attempting to ruin the employees’ reputations and careers; and (d) collecting reports against those who filed complaints in an effort to terminate them. Several doctors left the hospital out of fear of being targeted, and others refrained from submitting EEO complaints for fear of being retaliated against. The court concluded that this evidence was sufficient for the jury to conclude that the hospital management created a workplace filled with intimidation and ridicule that was sufficiently severe and pervasive to alter the plaintiffs’ working conditions.

To establish a retaliatory hostile work environment claim, an employee must demonstrate that he or she has fallen victim to actions that are sufficiently severe or pervasive to alter the terms and conditions of employment, thus constituting an adverse employment action. The requirement that the harassment be “severe or pervasive” contains both an objective and subjective component–the employee must demonstrate not only that he or she subjectively perceived the conduct to be abusive, but also that a reasonable person would find the conduct to be abusive. In evaluating the objective severity of the harassment, the Eleventh Circuit looks at the totality of the circumstances, including: (1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with the employee’s job performance.

It is important to note that an adverse employment action standing alone, such as a failure to promote or job reassignment, cannot form the basis for a retaliatory hostile work environment claim. However, a jury is permitted to consider discrete employment actions in evaluating a retaliatory hostile work environment claim because a series of separate acts can collectively constitute one unlawful employment practice. The employee must demonstrate that the unlawful employment practice occurred because of retaliation, or in other words said the Eleventh Circuit Court, that the adverse actions were motivated at least in part by retaliatory animus.

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