But Minor Acts Can Add Up to Retaliatory Harassment
While minor acts may not serve to support a claim of race discrimination or workplace harassment, as discussed elsewhere in this E-Update, they can be considered for purposes of assessing a claim of retaliatory workplace harassment, as explained by the U.S. Court of Appeals for the Sixth Circuit in Davis v. Metro Parks and Recreation Dept.
This case involved a female employee’s claims for retaliatory harassment, among other things, following her internal sex discrimination complaint regarding a promotion for which she was not selected. Among the acts that she complained of were written reprimands, denied access to her personnel file, denied access to the open door process, lower performance evaluations, transfer to another supervisor, and transfer of the employee’s assistant away from her. The trial court granted summary judgment to her employer, on the grounds that many of the acts were time-barred as they had occurred outside the applicable limitations period for harassment complaints (300 days under Title VII, one year under state law), and that the remaining acts were not sufficiently severe or pervasive to create a hostile work environment.
On appeal, the Sixth Circuit found that the trial court had applied the wrong standard to the employee’s retaliatory harassment claim. The Sixth Circuit explained that different standards apply to hostile workplace harassment claims and retaliatory hostile workplace claims. A hostile workplace claim must relate to an employee’s compensation, terms, conditions or privileges of employment. A retaliatory claim, however, is broader – it “extends beyond workplace-related or employment related retaliatory acts and harm.” Thus, the assessment for such a claim is whether the conduct “might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” But in relying on the conduct, which will typically extend over a period of time that may exceed the normal limitations period, the plaintiff must show that a reasonable person in the same circumstances, with the same training and experience, would believe that the conduct was unlawful. The Sixth Circuit observed that this reflects the purpose of the antiretaliation provision, which “protects an individual not from all retaliation, but from retaliation that produces an injury or harm.”
In this case, the trial court had determined that the complained-of conduct was not sufficiently severe or pervasive to create a hostile work environment, but in doing so, it only considered events related to terms and conditions of employment, and treated each event individually. The Sixth Circuit stated that the trial court should have assessed the cumulative effect of these individual acts.
Thus, employers should be aware that what it may view as petty slights or annoyances, while not rising to the level of a hostile workplace, can, in fact, support a claim of retaliatory harassment if such conduct follows an initial complaint of discrimination or harassment.