Thursday, February 24, 2011

Can a boss’s abusive conduct qualify as retaliation?

Title VII does not require that one suffer a job loss to claim retaliation. Instead, Title VII’s anti-retaliation provision protects against any conduct that would dissuade a reasonable worker from engaging in protected activity. Thus, for example, the mere threat of a termination—depending on the circumstances—could constitute an actionable adverse employment action for retaliation purposes.

In denying summary judgment to an employer, the court in EEOC v. Chrysler Group, Inc. (E.D. Wis. 2/17/11), considered not only whether the employer threatened termination, but also how the employer threatened termination:

[T]he manner in which Young delivered his message to each woman matters. If he was screaming and pounding his fists on the table while threatening termination, as Zahn and Hobbs testified, this scenario paints a much more hostile and intimidating atmosphere than if Young delivered his message in a normal tone of voice, as he contends he did.

What does this mean for employers? It could mean nothing. Or it could mean that if courts are examining the tone of threats, courts are beginning to become receptive to notions of bullying as actionable under existing laws.

Because Title VII is not a general civility code for the workplace, it only protects significant, as opposed to trivial, harms. If, however, courts are beginning to recognize threats without any follow-through as actionable, we are not that far of a leap from courts protecting general workplace bullying without any legislative prodding. This possibility should cause employers to be very worried.

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or