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Employer Can Be Liable for Retaliation against Complaining Employee from Co-Worker

    Client Alerts
  • March 07, 2008


The number and severity of employment lawsuits based upon claims of retaliation continue to rise. Federal courts tend to expansively read anti-retaliation laws to extend coverage to persons who report harassment or discrimination to their employer. A new Sixth Circuit Court of Appeals case, Hawkins v. Anheuser-Busch, Inc., illustrates the scope of these anti-retaliation prohibitions. After reporting a male co-worker to company management for sexual harassment, the plaintiffs alleged that he set their car and house on fire in retaliation for the complaints. Anheuser-Bush responded that as a matter of law, it was not responsible for such retaliation by a non-supervisory co-worker.

The Sixth Circuit reversed the lower court’s grant of summary judgment for the defendant. The court concluded that Title VII’s anti-retaliation provisions make employers liable for retaliatory actions by co-workers against employees who have engaged in protected activity, such as reporting sexual harassment. Like the underlying harassment claim, the employer is only liable for co-worker retaliation if it knew or should have known of the behavior, and failed to intervene. The Sixth Circuit used the Supreme Court’s Burlington Northern case to reject decisions by several other federal appellate circuits finding no employer liability for such co-worker retaliation.

In this case, the court concluded that Anheuser-Busch had been placed on notice by other employees that the co-worker had a pattern of retaliating against employees who complained to management about his behavior. When the employees reported the fires to management, their claims were never investigated.  The employer’s response to the underlying harassment claim did not relieve it of its independent responsibility to investigate and deal with the subsequent retaliation allegations.

Later this year, the Supreme Court is expected to decide a case asking whether an employee who participates in a harassment investigation of a complaint made by another employee is protected by Title VII’s anti-harassment protections, even if no EEOC Charge is ever filed. The clear trend of these cases is to expand legal protections for any person complaining or participating in the investigation of harassment or discrimination.