The national firestorm sparked by #MeToo has galvanized feminist legal scholars to reconsider the Title VII framework governing workplace sexual harassment and the potential for #MeToo to transform workplace culture in a way that Title VII, to date, has not. In the analysis of #MeToo’s prospects for change, less attention has been paid to how Title VII’s protection from retaliation intersects with the movement. One particular aspect of retaliation law – coworker retaliation – has thus far escaped the attention of legal scholars. Already underdeveloped as a species of retaliation law, coworker retaliation holds particular resonance for the #MeToo movement for several reasons. First, the Supreme Court’s decision in Vance v. Ball State University means that many employees with day-to-day supervisory responsibilities over other workers will count as coworkers and not supervisors for the purposes of employer liability for retaliatory harassment. Although Vance’s holding addressed liability for sexual harassment, its reasoning likely extends to retaliatory harassment as well. After Vance, more retaliatory conduct that might otherwise have been captured as retaliation by a supervisor will now fall under the murkier standards courts apply to coworker retaliation. Second, with disclosures of sexual harassment continuing to saturate social media accounts, opportunities for negative reactions by peers at work abound. Several doctrinal uncertainties about Title VII’s coverage of coworker retaliation cast doubt on the law’s ability to protect sexually harassed employees from punitive coworker reactions. Finally, as the #MeToo movement spawns an ascendant backlash, rising anger and hostility toward women who call out sexual harassment make retaliatory reactions from coworkers more likely. This Article, written for the University of Baltimore’s Applied Feminism and #MeToo symposium, explores several ways Title VII doctrine regulating coworker retaliation may affect – and potentially hinder – the transformative impact of #MeToo on workplace culture. The Article also considers how lessons from the #MeToo movement might be brought to bear on the development of Title VII’s framework for regulating coworker retaliation.
Coworker Retaliation in the #MeToo Era,
University of Baltimore Law Review
Available at: https://scholarship.law.pitt.edu/fac_articles/10