Court recognizes a new kind of claim: Retaliatory hostile environment

A federal court in Texas has for the first time recognized a new type of Title VII claim: that of a retaliatory hostile work environment.

This differs from an ordinary retaliation claim in which an employee alleges she has been punished for complaining about discrimination.

Essentially, the new type of claim looks at situations in which life was made generally difficult for an employee in small ways that in themselves would not affect a term or condition of employment. Acts that create the retaliatory hostile environment can be entirely unrelated to the original complaint, as this potentially significant case shows.

Recent case: Terri worked as a communications supervisor for the city of Converse’s police department. She resigned in frustration after complaining about alleged sexual harassment and experiencing what she claimed was a retaliatory hostile work environment.

Terri’s initial complaint was that the city manager began sending sex-based and inappropriate texts, jokes and pictures to her cell phone, usually late in the evening. She told the police chief about the texts and said she wanted it to stop. She also followed the department’s sexual harassment reporting procedures, reporting the problem to HR.

All that apparently prompted the city manager to call a meeting of all directors—where he told them to be careful about sending text messages to their subordinates.

Later he allegedly told Terri that “three other women in prior cities complained about me and all you get are warnings and they don’t do much more.”

Terri said that following this announcement, her work life became very difficult. An old investigation into a work incident was revived. Although she was cleared again, she did receive a reprimand.

Next came efforts to outsource her job; the city manager allegedly asked her if she was “ready to fight for your job.” Her schedule was changed to the midnight shift.

A new supervisor hired by the city manager regularly belittled Terri. Other managers publicly disclosed her salary and commented that her pay could fund the hiring of two additional police officers.

By then, Terri had had enough. She quit and sued.

The trial court concluded that employees who file harassment or discrimination complaints, and whose supervisors then engage in a series of efforts to make work life miserable, can allege a retaliatory hostile environment.

To prove that, the court said, an employee must be able to show:

1. She engaged in protected activity

2. She was subjected to some form of unwelcomed harassment

3. There was a causal connection between the harassment and the protected activity

4. The harassment complained of affected a term, condition or privilege of employment

5. The employer knew or should have known of the harassment and failed to take prompt remedial action.

The court said the many small offenses that Terri alleged could indeed add up to a retaliatory hostile work environment that would dissuade a reasonable employee from complaining in the first place. The court ordered a trial. (Niemietz v. City of Converse, WD TX, 2017)

Final notes: In today’s environment, not punishing someone who sends suggestive texts to a subordinate can spell big trouble. If you haven’t already, take a look at your harassment policies. Make sure they are designed for a quick and thorough investigation, with appropriate discipline for those who break the rules.