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

By Eddy, Corbin Margery | Albany Law Review, Fall 1999 | Go to article overview

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


Eddy, Corbin Margery, Albany Law Review


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.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

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

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.