Labor & Employment Law

After Burlington Northern & Santa Fe Railway Co. v. White resolved the issue of what constitutes an “adverse action” under the Title VII anti-retaliation statute, the scope of employer liability was substantially broadened. The Supreme Court’s decision reinforced the broad intent behind the anti-retaliation statute and acknowledged the statute’s remedial purpose. The Fifth Circuit, however, has been reluctant to expand employer liability as evidenced through its interpretation of the “adverse action” prong relating to coworker harassment. More specifically, the Fifth Circuit’s “In Furtherance” standard, which is used to judge whether an employer is liable for coworker harassment in retaliation for an employee opposing unlawful employment activities, conflicts with the underlying purpose of the anti-retaliation statute. No other circuit has such a stringent requirement and, unfortunately, the Fifth Circuit’s unique interpretation prevents many plaintiffs from obtaining justifiable relief. The Fifth Circuit applied this standard in Hernandez v. Yellow Transportation, Inc., which illustrated the frustrations surrounding the denial of John Ketterer’s retaliation claim. By reviewing other circuit courts’ analysis, legislative intent, Supreme Court precedent, and public policy, this Note explains how the Fifth Circuit’s interpretation of the anti-retaliation provision is misguided and proposes a simple solution to this intricate problem.