Yesterday, in Gowski v. Peake, No. 09-16371 (11th Cir. June 4, 2012), the United States Court of Appeals for the Eleventh Circuit became the last of the Circuit Courts of Appeal to recognize claims for retaliatory hostile work environment. Doing so, wrote the unanimous three judge panel, is consistent with interpretation of the prohibition against discrimination in other contexts and “is consistent with Title VII’s remedial goal and prevents supervisors from deterring protected conduct.”
The court applied familiar rules applicable to hostile work environment claims. “Thus, to be actionable, this behavior must result in both an environment that a reasonable person would find hostile or abusive and an environment that the victim subjectively perceive[s] . . . to be abusive.” In determining whether a reasonable person could find an environment hostile, courts in the 11th Circuit look 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.”
The court further clarified that, although separate and discrete acts of retaliation do not establish a hostile work environment claim, “the jury could consider discrete acts as part of a hostile work environment claim.” The justification for this conclusion is that a hostile work environment is, by definition, a series of separate acts that, when viewed together, constitute a single unlawful employment practice.
The full 30 page opinion addresses additional issues as well. Among them: application of the “same decision” defense to the “but-for” standard of causation in a retaliatory hostile work environment claim and whether injunctive relief is available in a mixed motive retaliation case.