Traditionally, sexual harassment laws have prohibited supervisors from taking retaliatory action against employees who report actions that they reasonably believe to constitute sexual harassment. However, the 9th Circuit Court recently ruled that, under Title VII, employers may be liable for the retaliatory acts of non-supervisory employees if the retaliation results in an "adverse employment action."

In Fielder v. United Airlines (UAL) (281, F.3d 973, 9th Cir. 2000) the plaintiff was employed with UAL as a customer service agent. For several years, she was subject to severe sexual harassment by M.C., a co-worker. Incidents included frequent touching of a sexual nature, propositions for sex in the presence of customers, and repeated obscene phone calls to her home. Fielder reported the incidents, and UAL issued a written reprimand to M.C.

At the conclusion of the investigation, UAL instructed Fielder not to discuss her allegations of sexual harassment with any co-workers, but UAL did not restrict M.C. in his discussions. UAL permitted M.C. to openly discuss Fielder's allegations with other employees without consequence.

In discussing the allegations with his co-workers, M.C. was successful in convincing them that he was falsely and maliciously accused. M.C.'s behavior resulted in ostracism and retaliation against Fielder by her co-workers. Fielder's co-workers retaliated by refusing to answer her technical questions, deliberately withholding work-related assistance, intentionally damaging her personal property, and publicly accusing her of fabricating the charges of sexual harassment.

Fielder's attorney contacted UAL and notified them of the retaliatory behavior and requested a transfer. UAL denied Fielder's transfer request, and subsequently transferred an employee with less seniority. Fielder sued, alleging sex discrimination, retaliation and constructive discharge.

The University community should be aware that liabilities are incurred, not only through acts of sexual harassment, but through subsequent harassment of employees engaged in legally protected activities as well.

Sexual harassment accusations may become a topic of conversation among employees. Employers and supervisors are often required, after an investigation, to form opinions regarding the credibility of the complaining party or the accused. However, supervisors must take proactive steps to prevent retaliation against those who complain of sexual harassment. Retaliatory acts by non-supervisory co-workers may now provide an independent source of liability for the institution, supervisors, and employees.

In reviewing the allegations, the court said that Professor Young's comments could be seen as "the equivalent of Professor Young telling the entire class that Hayut would give, or was giving, oral sex to older men in positions of authority." Further, the court noted that the statement "Shut-up Monica, I'll give you a cigar later" could have been interpreted by the other students as an assertion that Young and Hayut were engaging in the same types of sexual behavior that Ms. Lewinsky and President William Clinton were then accused of engaging."

The court ruled for Ms. Hayut in her Title IX case against SUNY. The court stated that SUNY was in violation of Title IX because officials with the responsibility and authority to remedy the situation had actual knowledge of the sexual harassment and they chose to be deliberately indifferent to it. Therefore, SUNY paid damages, and SUNY officials now await trial under 42 U.S.C. 1983 to find if they will pay damages from their personal savings accounts for failure to act (Hayut v. State University of New York, N.D.N.Y., 00-CV-0725, Dec. 18, 2000).