In Gowski v. Peake, No. 09-16731 (11th Cir. June 6, 2012), the Eleventh Circuit held that claims of a retaliatory hostile work environment are cognizable under Title VII. The court reasoned that all other federal circuit courts have recognized this cause of action, and, further, that allowing such a claim is consistent with the statutory text, congressional intent and the EEOC’s interpretation of the statute. The court made two other important points in applying its ruling: (1) the same legal standards governing claims of a hostile work environment on the basis of membership in a protected group, such as race, gender, national origin or religion, apply; and (2) a defendant cannot utilize the defense that it would have made the same decision in the absence of retaliatory animus. Where an adverse action is partly motivated by retaliation, an employer may avoid liability for that particular action by establishing the “same decision” defense, but it does not eliminate the adverse action from consideration of a retaliatory hostile work environment. Accordingly, employers should examine their policies to make sure that retaliatory harassment is forbidden and subject to the same reporting requirements as other hostile work environment claims. In addition, employers should be certain to document that any adverse actions taken against an employee are completely unrelated to protected activity.
