Sunday, April 3, 2016

The Unfulfilled Threat as Anticipatory Retaliation

In EEOC v. New Breed Logistics, 783 F.3d 1057 (6th Cir. 2015), the Sixth Circuit concluded that "a demand that a supervisor cease his/her harassing conduct constitutes protected activity covered by Title VII [of the Civil Rights Act of 1964]." As discussed in this post, if the rejection of sexual advances is regarded as protected activity for purposes of a retaliation claim, then some situations may result in overlapping claims of retaliation and sexual harassment. In particular, I would like to consider a potential retaliation claim for a supervisor's unfulfilled threats to punish someone if she rejects his sexual advances.

If an employee was denied a job benefit because she rejected a supervisor's sexual advances, then she was denied the benefit because of her sex. Moreover, it would appear that, under the reasoning of New Breed Logistics, such a denial would also constitute retaliation, since the adverse action (job benefit) was denied because of protected activity (rejection of sexual advances).

In this kind of situation, the existence of overlapping sex discrimination and retaliation claims may have little practical effect. An overlap might be more significant, on the other hand, if an unfulfilled threat could be challenged as retaliation.

In Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), Kimberly Ellerth alleged that her supervisor sexually harassed her by threatening to deny her job benefits if she rejected his sexual advances. The Supreme Court disagreed with the contention that, under a theory of "quid pro quo" sexual harassment, threatening to punish someone for rejecting sexual advances results in automatic employer liability. Rather, in the Court's view, because Ellerth's claim "involve[d] only unfulfilled threats, it should be characterized as a hostile work environment claim which requires a showing of severe or pervasive conduct." In a hostile work environment claim involving harassment by a supervisor, an employer can raise an affirmative defense to liability or damages.

In Beckel v. Wal-Mart, 301 F.3d 621 (7th Cir. 2002), the Seventh Circuit stated that it would constitute unlawful retaliation to threaten an adverse action against an employee if she were to engage in protected activity in the future. If, as suggested by New Breed Logistics, the rejection of sexual advances is protected activity, then, as suggested by Beckel, the threat to take an adverse action for a future rejection would be unlawful retaliation. It is not clear, however, when, if ever, the Seventh Circuit would conclude that rejecting sexual advances is protected activity. In Tate v. Executive Management Services, 546 F.3d 528 (7th Cir. 2008), the Seventh Circuit noted a circuit split as to whether someone engages in protected activity by rejecting sexual advances. And the court determined that, even assuming that rejecting sexual advances could constitute protected activity in some circumstances, it could only do so if the employee believed at the time of the rejection that she was opposing unlawful conduct. 

It is likewise not clear that the Sixth Circuit recognizes the anticipatory retaliation theory advanced by the Seventh Circuit in Beckel. In particular, in New Breed Logistics, the Sixth Circuit rejected the employer's contention that construing a complaint made solely to a harassing supervisor as protected activity would have the effect of converting every harassment claim into a retaliation claim. The court explained: "Assuming the other elements of a prima facie case are present, a harassment claim becomes a retaliation claim if, after the harassee opposes the harassment, the harasser initiates adverse action against the victim." Under this view, then, if a retaliation claim always requires that protected activity precede the adverse action, then there could not be a claim for anticipatory retaliation. Still, the Sixth Circuit was not faced with circumstances in which an adverse action was allegedly taken to prevent protected activity, so I'm not sure what to make of its observation in New Breed Logistics about timing.

Finally, even assuming a court were to recognize an unfulfilled threat as anticipatory retaliation, it is unclear what effect such a retaliation claim would have on employer exposure to liability.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.