Employees who report to their employer harassing conduct or a hostile work environment created by the misconduct of a co-worker can find themselves the target of retaliation by those responsible for the misconduct or other employees that consider themselves allies of the offender. The United States Court of Appeals for the Sixth Circuit recognized in Hawkins v. Anheuser-Busch, Inc., No. 07-3235 (6th Cir. February 19, 2008), that toleration of such co-worker retaliation could lead to liability under Title VII for the employer.
The threshold for unlawful retaliation, the Court noted, was whether the retaliatory act would "dissuade a reasonable worker from making or supporting a charge of discrimination." The Court established a three-part test for employer liability to arise: (1) whether the co-worker's retaliatory conduct is sufficiently severe so as to dissuade a reasonable worker from making or supporting a charge of discrimination; (2) whether supervisors or members of management have actual or constructive knowledge of the co-worker's retaliatory behavior; and, (3) whether supervisors or members of management have condoned, tolerated, or encouraged the acts of retaliation, or have responded to the employee's complaint so inadequately that the response manifests indifference or unreasonableness under the circumstances.
