Retaliation: Agency Theory and Gaps in the Law

Abstract

This paper will explore the application of agency theory, the view that the principal is responsible for the actions of his agent, to the law of retaliation in sexual harassment cases. In the law the agency principle is sometimes known as the doctrine of respondeat superior. This doctrine has been used in sexual harassment cases, most frequently in hostile environment cases, but also in quid pro quo cases. The question addressed in this paper is, “Can the principle of respondeat superior be applied to issues of retaliation where the retaliation in question is not conducted by an employer, directly, but indirectly through the actions of a co-worker who had been accused of sexual harassment?” Section 704 (a) of Title VII of the Civil Rights Act of 1964 in part reads as follows: “It shall be an unlawful practice for an employer to discriminate against any of its employees or applicants for employment…because he has opposed any practice, made an unlawful employment practice by this title, or because he has made a charge, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under this title.” The language seems clear enough, but what of a circumstance in which a harassing fellow employee uses tactics which are plainly retaliatory, except that they are conducted by the employee, not the employer, but the employer does nothing to curb the retaliatory behavior? Does this mean that an earlier victim of sexual harassment must now be the victim of retaliation? In the enforcement of Title VII, does the employer have a responsibility to bring the wayward harasser to tow? This paper will lay out the broad outlines of retaliation from a legal perspective, examine some applications of respondeat superior in sexual harassment law and finally suggest gaps in the law wherein this principle may be applied in cases of retaliation following sexual harassment claims. Our examination will also include retaliation against supporting fellow employees of a victim.