As the #MeToo movement has exposed, workplace harassment is prevalent, underreporting likely contributes to its prevalence, and fears of retaliation underlie underreporting. Thus, the cycle of harassment continues. Yet we still know very little about the prevalence of retaliation or how employers respond to harassment. This Article highlights retaliation following workplace harassment as a unique and prevalent problem and examines the characteristics of harassment that affect an employer’s response. This data supports a reversal of the trend toward narrowing employer liability for harassment and retaliation that has occurred over the previous twenty years.
Upwards of 70% of harassment claims filed with the EEOC include a retaliation charge, and as this Article reveals for the first time, harassment charges are more than 90% more likely to include a retaliation charge than any other type of discrimination claim filed with the EEOC. These statistics are striking, but also predictable. Following the US Supreme Court’s defining of the standards for harassment liability, courts have lowered the bar for employer liability for harassment and retaliation. Courts have also created a conundrum where harassment victims are required to internally report harassment before filing a formal charge, but those reports are not always protected by retaliation law.
Absent legal liability, unique characteristics of an employer’s response to harassment increase the likelihood that an employer will act against a harassment victim. Unlike many forms of discrimination, when an employer learns of harassment, the victim and harasser are still employed and the employer may believe that if it separates the two employees, the harassment will stop. The employer may be more likely to act against the victim if the harasser is more valuable to the company. Current liability standards, which make an employer more likely to be liable for supervisor harassment and harassment that is reported, should decrease an employer’s incentives to act against a victim. But an empirical analysis of the 2016 Merit Systems Protection Board harassment survey of federal employees illustrates show that being harassed by a supervisor and reporting harassment greatly increases the likelihood that a victim experiences an adverse employment action as a result of the harassment. These results support a call to broaden employer liability standards for harassment and retaliation in order to combat an employer’s incentives to act against the victim, lessen retaliation, encourage reporting, and decrease the prevalence of workplace harassment.
Druhan Bullock, Virginia Blair, Uncovering Harassment Retaliation (April 22, 2020). Alabama Law Review, forthcoming.