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Nevada Litigation Blog

Employers Can Be Sued For a Hostile Environment

Written by: Edgar Carranza

Employers are often under the misconception that if an employee complains about a perceived discriminatory action or harassment, which turns out to be baseless, their subsequent conduct with respect to that employee will only be considered retaliation if they the employee is demoted, suspended or otherwise unfairly disciplined. While several courts have addressed the issue of retaliatory harassment/hostile environment, a recent decision out of the 1st Circuit, articulates why these hostile environment claims are viable in addition to actual retaliatory actions and independent of whether the underlying claims are supportable.

In Noviello v. City of Boston, No. 04-1719 (Feb. 16, 2005) a city employee complained about perceived incidents of sexual harassment. The employee alleged that after her complaints, she was not suspended, demoted or suffered some other form of adverse employment decision, rather that was subjected to repeated incidents of hostile behavior by her co-workers. The city employee sued for the retaliation under Title VII arguing that the hostile environment in her workplace created after the underlying complaints constituted retaliatory harassment. The First Circuit agreed outlining that “[e]ven when retaliation is derivative of a particular act of harassment, it normally does not stem from the same animus. Most often, retaliation is a distinct and independent act of discrimination, motivated by a discrete intention to punish a person who has rocked the boat by complaining about an unlawful employment practice. … That is a different animus than the sexual animus that drove the original harassment.” The court went on to explain that “[w]e .. hold explicitly that a hostile work environment, tolerated by the employer, is cognizable as retaliatory adverse employment action for purposes of [Title VII]. This means that workplace harassment, if sufficiently severe or pervasive, may in and of itself constitute an adverse employment action sufficient to satisfy the second prong of the prima facie case for Title VII retaliation cases. … [T]he verb ‘discriminate,’ as used in [Title VII], logically includes subjecting a person to a hostile work environment.”

Following and even during any type of Title VII investigation, an employer should counsel its employees not to treat a complaining employee differently because of his/her complaints. The employees should be made to understand that complaints of discrimination or harassment are encouraged and make the work place better for all employees. The employers should be vigilant of any hostile environment that may have been created as a result of the Title VII investigation or may be growing following the Title VII investigation and move quickly to correct it.

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