One of the more rarely mentioned types of retaliation claims available to employees is a retaliatory harassment claim. In Yanowitz case, the California Supreme Court cited with approval Gunnell v. Utah Valley State College case for the proposition that “coworker hostility or retaliatory harassment, if sufficiently severe, can constitute adverse employment action for purposes of a retaliation claim.” In Gunnell, the court held that “an employer can only be liable for co-workers’ retaliatory harassment where its supervisory or management personnel either (1) orchestrate the harassment or (2) know about the harassment and acquiesce in it in such a manner as to condone and encourage the co-workers’ actions․ An employer may not be held liable for the retaliatory acts of co-workers if none of its supervisory or management-level personnel orchestrated, condoned, or encouraged the co-workers’ actions, and no such management participation could occur if the supervisory or management-level personnel did not actually know of the co-workers’ retaliation.”
Further, in Kelley v The Conco Companies, the first district court of appeal stated as follows in reference to retaliatory harassment claims: “We agree that an employer may be found to have engaged in an adverse employment action, and thus liable for retaliation under section 12940(h), “by permitting fellow employees to punish [him] for invoking [his] rights.” We therefore hold that an employer may be held liable for coworker retaliatory conduct if the employer knew or should have known of coworker retaliatory conduct and either participated and encouraged the conduct, or failed to take reasonable actions to end the retaliatory conduct.
The above is a powerful, helpful language for employees-claimants who are being retaliated against by their supervisor in a following typical manner: an employee engages in some type of protected activity at workplace (i.e. complaining about harassment, requesting disability leave, complaining about safety violations, etc…), subsequently suffers some form of prohibited harassment or discrimination by a co-worker, complains about that harassment to his supervisor, but his supervisor fails to take any steps to remedy the harassment or plainly ignores those complaints. In other words, a supervisor can no longer get away with “passively” retaliating against an employee by ignoring a victims’ harassment or discrimination complaints.