Fourth Circuit Sets Forth Standard for Retaliatory Hostile Work Environment Claims.
Title VII prohibits discrimination based on the creation of a hostile work environment – meaning that working conditions are so “permeated with discriminatory intimidation, ridicule, and insult” that they “alter the conditions of the victim’s employment and create an abusive working environment.” The law also prohibits retaliation for complaining about discrimination – and according to the U.S. Court of Appeals for the Fourth Circuit, this can include the creation of a hostile work environment.
In Laurent-Workman v. Wormuth, the employee brought a claim of retaliatory hostile work environment, among other things. As the Fourth Circuit noted, to establish illegal retaliation, courts historically required some action that impacted a term or condition of employment, essentially resulting in some negative economic impact (like a termination, failure to promote, denial of a raise, etc.). However, the U.S. Supreme Court held in Burlington Northern & Santa Fe Railway Co. v. White that retaliation includes a “wider variety of conduct.” The standard articulated by the Supreme Court is that retaliation involves “materially adverse” actions that “might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” The Fourth Circuit acknowledged that a hostile work environment may constitute retaliation, as long as it is “so severe or pervasive that it would dissuade a reasonable worker from making or supporting a charge of discrimination.”
More specifically, the Fourth Circuit asserted that a hostile work environment claim based on retaliation “must allege that the retaliatory conduct (1) was unwelcome, (2) was sufficiently severe or pervasive that it would dissuade a reasonable worker from making or supporting a charge of discrimination, and (3) can be attributed to the employer.” The Fourth Circuit clarified that this does not include “petty slights or minor annoyances that often take place at work and that all employees experience.” But a course of generally minor incidents that, when each taken on its own, would “not amount to much,” can constitute illegal retaliation under the totality of the circumstances.
Thus, employers must be mindful that to ensure that employees who complain of discrimination or harassment are being treated no differently from other employees, even as to minor things. A pattern of seemingly minor or unrelated negative incidents experienced only by that employee could potentially be combined to support a retaliatory hostile work environment claim.