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53 U. Louisville L. Rev. 39 (2014)
The Necessity of Expanding Protection from Retaliation for Employees Who Complain About Hostile Environment Harassment
Ernest F. Lidge III*
Abstract

     Policies favoring employee reporting of harassment to the employer are thwarted by the retaliation “reasonable belief” standard.46 This Article will examine the need for a modification of the “reasonable belief” rule when an employee claims that the employer retaliated against her for complaining about hostile environment harassment. Part II summarizes the law of harassment based on the employee-victim’s membership in a group protected by the employment discrimination laws. Included is a discussion of the two types of sexual harassment, quid pro quo and hostile environment, and a discussion of hostile environments based on an employee’s membership in one of the other groups protected by employment discrimination laws—race, religion, national origin, age, and disability.

     Part II also discusses the elements of a hostile environment claim. In addition to showing that the harassment was based on membership in a protected group, the plaintiff must show that the harassment altered the terms and conditions of her employment (that the harassment was severe or pervasive). In addition, the plaintiff-employee must show that the complained-of harassment was “unwelcome.” This Part also examines what an employee must show to impose vicarious liability on the employer. Moreover, this Part makes several other points about the law surrounding hostile environments based on an employee’s membership in a protected group. Often, an employee cannot guess when a hostile environment has been created or when a person could “reasonably believe” that a hostile environment has been created. Furthermore, the operation of the law strongly encourages an employee to complain in order to demonstrate “unwelcomeness” and in order to impose vicarious liability on the employer. Thus, the policies behind employment discrimination laws favor early reporting so that the problem can be resolved informally, and the employer can act to stop the harassment.

     Part III of this Article examines the law of retaliation under Section 704 of Title VII and the comparable provisions in the Age Discrimination in Employment Act of 1967 (ADEA) and the Americans with Disabilities Act of 1990 (ADA). It examines the two basic types of retaliation cases: participation and opposition claims. Under the opposition clause, the one relevant to this Article, most courts require that the plaintiff establish that she had a “reasonable belief” that the employer violated the law.

     Part IV of this Article examines the tensions between the realities of the law of hostile environment harassment and the “reasonable belief” requirement. The law of hostile environment harassment strongly encourages complaining to the employer about the unwanted actions while the “reasonable belief” requirement discourages reporting. 

     Part V discusses authorities that support broader protection for employee complaints about hostile environment harassment, and Part VI proposes a test that would grant broad protection. Under the proposed test, if the complained-of action is a tangible employment action, then the “reasonable belief” test is appropriate. However, when an employee complains of hostile environment harassment or other non-tangible employment actions, courts should apply a different test. If the unwelcome, complained-of conduct, repeated on a daily basis, could eventually rise to the level of a hostile environment, then courts should consider the complaints “protected” conduct under Section 704 of Title VII and the equivalent anti-retaliation provisions of the ADEA and the ADA. If the conduct, even though repeated daily, would never rise to the level of a hostile environment, then courts should consider the conduct unprotected. 

* Professor of Law, The University of Memphis Cecil C. Humphreys School of Law; B.S. Ed., Northern Illinois University, DeKalb, Illinois, 1976; M.A., University of Illinois, Chicago, Illinois, 1981; J.D., University of Illinois, Champaign, Illinois, 1984. I would like to thank my research assistants Jessica Chandler and Steven Shirley. I would also like to thank my friend Leigh Hollingsworth for reading an earlier draft of this Article.