Finding the Appropriate Standard for Employer Liability in Title VII Retaliation Cases: An Examination of the Applicability of Sexual Harassment Paradigms

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I. INTRODUCTION

As society's recognition and understanding of sexual harassment and its impact have evolved in recent years, the law has struggled to reflect and respond to these developments.(1) One area that has seen recent alteration is the standard of employer accountability for the illegal conduct of its agents.(2) The Supreme Court offered guidance first in Meritor Savings Bank, F.S.B. v. Vinson,(3) by recognizing two types of sexual harassment.(4) Most recently, the Court's decisions in Burlington Industries, Inc. v. Ellerth(5) and Faragher v. City of Boca Raton(6) signaled change by clarifying their intentions as expressed in the Meritor opinion.(7) All of these decisions address the specific concern of employer liability for sexual harassment; none directly confront employer liability regarding another Title VII violation, namely, retaliation.(8)

Title 42 [sections] 2000e-3(a) makes it unlawful for an employer "to discriminate against any of his employees ... because [s]he has opposed any practice, made an unlawful employment practice ... or because [s]he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter."(9) This provision "permit[s] employees to pursue, without fear of retaliation, the statutory procedural mechanisms designed for the vindication of their rights,"(10) and creates a separate cause of action against an employer for retaliatory acts against employees who file Title VII complaints or support the complaints of others.(11) Thus, a claimant who successfully proves her retaliation case can recover against her employer, even if her sexual harassment claim fails.(12)

Courts have determined the allegations required to establish a prima facie case for retaliation. Although each circuit has developed its own standard, the elements are fairly consistent. A claimant must show that (1) she has participated in an action protected by the statute; (2) she has suffered an adverse employment action, and; (3) there is a causal connection between the protected behavior and the adverse employment action.(13) Some circuits explicitly require the claimant to show that the employer had knowledge that the employee participated in a protected activity.(14)

Unresolved in the area of retaliation law is the standard for employer liability.(15) In the sexual harassment context, the few courts to address this issue have struggled to discern the appropriate standard of employer liability for the retaliatory acts of supervisory personnel.(16) Despite the paucity of judicial authority, all of the existing decisions rely on paradigms from the sexual harassment arena.(17)

This Comment seeks to address the impact of the Supreme Court's new guidance for employer liability in sexual harassment claims in the retaliation context. Part II of this Comment will explore the development of the standard for employer liability in sexual harassment cases, including the refinement of the standard through recent Supreme Court decisions in Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton.(18) Part III will examine the application, in decisions prior to Burlington Industries and Faragher, of the sexual harassment paradigm for employer liability to the retaliation context and will make predictions regarding its continued application.(19) Part IV will address the split in authority over the proper meaning of the "adverse employment action" requirement for a prima facie case of retaliation and will conclude by advancing several reasons for the uniform adoption of one meaning, particularly in light of the new Supreme Court guidance.(20)

II. EMPLOYER LIABILITY FOR SEXUAL HARASSMENT

A. The Development of Dual Standards

In 1980, the Equal Employment Opportunity Commission (EEOC) issued its Guidelines on Discrimination Because of Sex (Guidelines), which defined sexual harassment under Title VII and outlined the EEOC's position on employer liability should harassment be proven. …