Employment discrimination laws prohibit retaliation against an employee who engages in protected activity. What happens, though, when it is not a manager or supervisor who is retaliating against an employee, but a coworker? For example, can an employer be held liable when a non-supervisory or non-managerial employee against whom a complaint of harassment or discrimination been lodged undertakes a plan to take revenge on the complaining party?
In Hawkins v. Anheuser-Busch, Inc., the 6th Circuit determined that "in appropriate circumstances, Title VII permits claims against an employer for coworker retaliation." To determine whether such "appropriate circumstances" exist to hold a company is liable for an employee's retaliation against a coworker, courts must determine if:
- the coworker's retaliatory conduct is sufficiently severe so as to dissuade a reasonable worker from making or supporting a charge of discrimination;
- supervisors or members of management have actual or constructive knowledge of the coworkers' retaliatory behavior; and
- supervisors or members of management have condoned, tolerated, or encouraged the acts of retaliation, or have responded to the plaintiff's complaints so inadequately that the response manifests indifference or unreasonableness under the circumstances.
The facts that pertain to Cherri Hill's retaliation claim are pretty outrageous. Bill Robinson frequently harassed many of his female coworkers with lewd, graphic, and often threatening language. After Hill reported that Robinson had harassed her, her car was set on fire. Following the close of its investigation into Hill's allegations, Anheuser-Busch corporate headquarters received an anonymous letter criticizing the investigation. The letter stated that "fellow employees on the line are intimidated from telling the truth because they are well aware of what [Robinson] is capable," and that employees were "afraid to get involved" because "bad things" happened to women who made accusations against Robinson. The letter recounted specific allegations of violence against women at the brewery, including Hill's car fire, that Robinson had threatened to "kill that Bitch" (meaning Hill) if he lost his job, and that the tires of another employee's car were slashed after she threatened to report Robinson for harassment. The letter also stated that Robinson had bragged that he had slashed the tires to "repay the woman for telling on him," and that it was "this type of retribution" that "keeps people from speaking out" against him.
In response, the brewery did nothing. It took no action against Robinson, did not reopen the investigation to interview additional employees, did not warn Hill, and did not set up a confidential way for employees to report harassment by Robinson. In fact, Robinson remained employed for another 3 years, until he was terminated for harassing another employee.
The 6th Circuit held that Hill's case presented appropriate circumstances for permitting her coworker retaliation claim to proceed. Anheuser-Busch management knew of the allegation that Robinson had set fire to Hill's car in retaliation for her complaint and that he had threatened to kill Hill if he lost his job. The Court found that "Robinson's threatening behavior and violent acts of retaliation were common knowledge to both coworkers and supervisors at the brewery," and that "Hill's allegations might ... have been substantiated by a more complete investigation."
The Court detailed Anheuser-Busch's failure in responding to Hill's complaint of retaliation:
Anheuser-Busch ... failed to show that it responded to Hill's complaint of retaliation in any meaningful way. The two members of management to whom Hill reported the fire ... allegedly not only failed to investigate Hill's allegation that Robinson had retaliated against her, but chided her for attempting to make a report. The brewery never bothered to investigate the incident, monitor Robinson, or create a safe environment for harassment complaints. A jury could find that, given what management knew about the fire, the brewery had an obligation to investigate the incident.... [T]he brewery never bothered to investigate Hill's allegation that Robinson was continuing to harass her in retaliation for her report. The serious nature of Hill's allegation could lead a jury to find that failing to investigate the incident and issuing a letter solely to Hill, as opposed to Robinson, was an insufficient response.There are, therefore, sufficient facts in the record upon which a jury could find that Anheuser-Busch's failure to investigate the complaint of Robinson’s violent act of retaliation was both indifferent and unreasonable.
The lesson for businesses is an important one. A company cannot turn a blind eye to employee complaints, whether of harassment or retaliation, and expect to get a pass from a court. Burlington Northern made clear that any act that would "dissuade a reasonable worker from making or supporting a charge of discrimination" is considered adverse and therefore actionable as retaliation. Employers must be mindful not only of harassment complaints, but also retaliation complaints. One would be hard-pressed to argue that arson would not "dissuade a reasonable worker from making or supporting a charge of discrimination." Armed with information of Robinson's culpability for the fire, among other things, the brewery simply could not sit on its hands and do nothing. As long as courts make an honest assessment of whether a particular case presents the "appropriate circumstances" to hold an employer liable for retaliation by a coworker, this rule makes sense.
Later this week, I'll take a look at the other aspects of the Hawkins decision -- whether other acts of harassment unrelated to the plaintiff are relevant to a harassment claim, and the appropriateness of an employer's response to an internal harassment complaint.