Retaliatory Hostile Work Environment Claim Recognized by Eleventh Circuit


By: Joyce Mocek
In a case of first impression for the Eleventh Circuit, the Court in Gowski v. Peake held that a retaliatory hostile work environment was a viable claim.  The Court also noted that although discrete acts cannot alone form the basis of a hostile work environment claim, the jury could consider discrete acts as part of a hostile work environment claim.  This holding is significant for many reasons, not least of which because the number of retaliation claims continue to increase dramatically.
In its June 2, 2011 decision, the Eleventh Circuit noted in Gowski that it had not yet recognized a retaliatory hostile work environment claim, although every other circuit had.  Thus, the Court held recognizing such a cause of action was consistent with the statutory text, congressional text, and the EEOC’s own interpretation of Title VII.    
The defendants argued that discrete acts alone could not be considered as part of the hostile environment because, where the jury applied the same decision defense, the retaliatory intent was not the “but-for” cause.  The Court stated that although the defendants were correct that retaliation must be the “but for” cause, the same-decision defense did not eliminate causation in a hostile work environment claim.  It held that, although the same-decision defense eliminates but-for causation for each discrete action, it does not eliminate the but-for causation that matters in retaliatory hostile work environment claims.  The Court stated that “allowing the same-decision defense to eliminate but-for causation in a hostile work environment claim would essentially do away with the claim.”
This recent decision shows the continuing trend in the Eleventh Circuit and other circuits toward allowing retaliation claims.  We anticipate that employers will see more and more retaliation claims, and they must continue to properly investigate all allegations of discrimination, harassment, and retaliation.  Employers must also be mindful of the potential ramifications of not properly addressing these claims.