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...premises within two hours after reporting sexual harassment to her boss. If harassment displays power over another, then retaliation flaunts power. Its origin is Title VII, which provides for separate relief if an adverse action ("retaliation") is taken against a complainant "because he has opposed any practice made an unlawful employment practice..." (Title VII, 1964). Retaliation is an attorney's "gotcha." That is, even if a woman would have lost her original sexual harassment claim for lack of proof, she will win if she can prove that she experienced retaliation for having complained about sexual harassment (Morris v. Oldham County Fiscal Court, 2000).
Aggrieved employees claiming retaliation under Title VII must prove that they engaged in a protected activity, that the employer took an adverse action against them, and that there was a causal connection between the protected activity and the adverse action (Burger v. Central Apartment Management Inc., 1999). Implicit in these requirements is that the employer knew of the employee's participation in a protected activity, and that the adverse action follows sufficiently close in time to justify an inference of retaliatory motivation (Wille v. Hunkar Laboratories, Inc., 1998).
Retaliation for complaining about sexual harassment can be expensive. Over the last five years, employers have lost a higher percentage of retaliation lawsuits than suits for age, disability, race, or sex discrimination (Oppel, 1999, p. C8). Consider recent examples:
* A jury award of $152,500 was upheld by a U.S. Court of Appeals U.S. for a woman who was fired after complaining to police that her supervisor had grabbed her breast (Worth v. Tyler, et. al., 2001).
* A New Jersey jury awarded $1.5 million to a female police officer who was demoted after she took legal action for being sexually harassed (Mancini v. Teaneck, 2000).
* A U.S. Court of Appeals upheld a $410,156 judgment in favor of a female employee who lost her office and her secretary, and who was demoted from her six-figure job following harassment that included sexual harassment (Durham Life Insurance Co. v. Evans, 1999).
Retaliation is becoming the form of employment discrimination of the new decade. Retaliation for all forms of employment discrimination (not just sexual harassment) is increasing. In 1992, the Equal Employment Opportunity Commission (EEOC) reported that 14.5% of claims filed included a claim of Title VII retaliation. By 1998, the percentage had increased to 2 1.7% (U.S. EEOC, 2001), and by 2000, it was 25% (The Bureau of National Affairs, 2001, p. 1324).
Claimants may identify more than one basis (race, age, etc.) when filing a claim. EEOC's data include all bases that each claimant used, without distinguishing a primary basis. Thus, EEOC's data on the bases on which claims are filed totals more than 100%. For example, for 1998 claims, the data total 144.4%. However, the authors' database prioritizes each claimant's bases, enabling analyses based on 100% of the bases on which the claimants filed. Using this approach, in 1992, 10.1% of the claims were for retaliation. By 1998, the percentage was 21.9%, having more than doubled. Regardless of the counting method, retaliation claims are rising.
Brief Review of Sexual Harassment
"Sex" under Title VII includes two types of harassment. The first, quid pro quo, occurs when an employee is pressed to exchange "this for that," e.g., a promotion for sexual favors. The second type is where discriminatory actions have created a hostile or abusive working environment (Meritor Say. Bank, FSB v. Vinson, 1986). "For [hostile environment] sexual harassment to be actionable, it must be sufficiently severe or persuasive to alter the conditions of employment and create an abusive working environment" (Mentor, p. 2405). Whether a working environment rises to this level is determined on a case-by-case basis, by looking at all the circumstances. "These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's performance" (Harris v. Forklift Sys., Inc., pp. 20-1).
There are two possible sources of the sexual harassment: nonsupervisors, e.g., co-workers, customers, others; or, supervisors, immediate or higher level. Courts have held that employers will not be liable for harassment by nonsupervisory personnel if employers implement effective policies and promptly take action to rectify any harassment. The question has been more difficult, however, when the source of the harassment is a supervisor. Supervisors are agents for employers. Thus, when a supervisor is the source, it is as though the employer itself was the harasser ("vicarious liability"), even though harassment is not a typical job duty.
The U.S. Supreme Court recently (Burlington Industries, Inc. v. Ellerth, 1998; and, Faragher v. City of Boca Raton, 1998) reconciled the two types of sexual harassment, clarified when employers would be vicariously liable for their supervisors' behavior, and recognized an affirmative defense for employers in certain situations. First, the Court clarified that quid...
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