Standing under Title VII: Legal Allyship & Hostile Work Environment as a Concrete Injury

By: Eve Hillman
Associate Editor, Vol. 26

In Childress v. City of Richmond, seven white male police officers sued their employer on hostile work environment grounds under Title VII.[1] Their claim stemmed from allegedly racially discriminatory and sexually harassing conduct by their lieutenant directed towards Black female police force members.[2] The court dismissed the Title VII hostile work environment claim, holding that the officers did not have standing to bring a Title VII case based on harm directed at others.[3] But, was it really harm directed at others?

I think that the court should have granted the white male officers in Childress and other white co-workers standing under Title VII to sue for hostile work environment claims. Although they were not being harassed in the traditional sense of comments being directed toward them, they were experiencing concrete harm because the harassment against their co-workers made for a hostile work environment. This expansion of standing could better uphold the goals of Title VII. It could also provide an opportunity for legal allyship wherein white co-workers use their privilege in a powerful way to bear the backlash of a lawsuit and advance workplace equality.

Title VII’s “because of sex” provision has expanded since its writing in 1964.[4] I believe that Title VII provisions can be extended just a step farther to allow standing for co-workers who are not the direct target of harassment in their workplace but are injured nonetheless by the hostile work environment that the harassment towards someone else is creating.

The easiest first step would be to allow standing for co-workers who work in emergency response/first responder services—specifically, police officers, firefighters, EMTs, and paramedics. These professions have a particularly strong argument for co-worker standing because trust between co-workers is an essential part of their everyday job responsibilities.[5] Trust between co-workers for first responders can literally mean life or death for each other and life or death for the members of the public they serve.[6] If there is harassment from one member of the group towards another, the trust between them is severely weakened, and that is the concrete injury that I think co-workers have the grounds to sue on.

By expanding standing for hostile work environment claims in this way, first responders experiencing sexual harassment, racial discrimination, and/or the intersectionality of race and sex harassment can feel more supported. This is especially relevant in 2020 with the revival of the Black Lives Matter movement and a national focus on race relations among police and other first responders.

The Wall Street Journal investigated race relations between Black and white police officers in metropolitan police departments around the nation in the wake of the murder of George Floyd.[7] They identified nearly two dozen lawsuits or settlements involving Black officers who alleged discrimination against departments across the country over the past three years.[8] They quoted one former New York police officer as saying, “The same hell that black people were experiencing on the streets, we were experiencing inside the department.”[9]

Black officers in other cities have taken legal action to try and remedy their hostile work environments. For example, San Francisco Police Department Captain Yulanda Williams, who joined the force in 1990, sued the city and the Police Department last May, alleging she’d been targeted by white co-workers and supervisors for speaking out against racism and sexism.[10] According to her complaint, co-workers harassed Ms. Williams for her hairstyle, and a supervisor told her she needed to choose the police over her identity as a Black person. “Pick a side. You seem confused about this,” her supervisor said, according to the complaint.[11] In a similar case out of St. Louis, Heather Taylor, a supervisor with the St. Louis Metropolitan Police Department, said a white police dispatcher referred in a social-media post to people protesting Mr. Floyd’s death as “animals.”[12] In a second incident in the same department, a Black officer found a note in a precinct cabinet that read “Hitler rules.”[13] The St. Louis police Chief John Hayden admitted that “Undeniably, there is racial tension among our ranks” and mentioned that they are adding new anti-bias training to examine officers’ interactions and decisions.[14] 

In both of these examples, Black employees who arguably had the least social capital and most to lose in these situations stepped up to fight for a better work environment. But what if a white employee was able to take on this work environment themselves through co-worker standing?

If a court were to recognize co-worker standing, the opportunity for a unique form of legal allyship would arise. In cases involving discrimination and harassment, the victim is often someone who holds marginalized identities and cannot or should not be the person to have to take on the weight of a lawsuit, the press, and potential retaliation. But, our legal system requires that someone take the undesirable position of being a plaintiff in an employment suit to remedy the problem. Legal allyship by co-workers could be a part of the solution. Co-workers with more privielge could take the place as the case’s primary plaintiff and the risk of media backlash and retaliation that comes with it and simply allow the Black employees to testify as witnesses of the harassment.

This form of legal allyship would need to be balanced with the wants and needs of the victim of discrimination and harassment. Telling someone else’s story without their permission in court is not allyship; it is manipulation. However, if those concerns can be balanced and a victim gives permission for someone else to bring the suit, then having someone else be the lawsuit’s main subject might be incredibly empowering. It could allow the victim to testify to their experience as a witness instead of being a named party. Also, the fact that someone else brings the lawsuit is validation that what happened to the victim was recognized by someone else as severe or pervasive enough to constitute a valid claim; instead of getting minimized or brushed off like so many acts of discrimination and harassment. If courts were to recognize standing for employees under these circumstances, the fight for the expansion of the standing requirement in other careers will become easier.

“Allyship is the long-term process of building and maintaining trust, consistency, and accountability with individuals and groups that have been underrepresented. The successful practice of allyship results in people feeling valued, supported, and respected.”[15] Title VII has evolved to address the issues that are creating hostile work environments. From race to sex to sexual orientation and transgender status, the words of Title VII have done much more than they were initially expected to.[16] Allowing hostile work environment cases to be brought by allies who hold privileged identities and, as a result, can better withstand the potential backlash from a lawsuit could make considerable strides in making our workplaces and institutions more accountable for discriminatory and harassing behavior and would better uphold the goals of Title VII.

[1] Childress v. City of Richmond, 134 F.3d 1205, 1207 (1998).

[2] Id. at 1206

[3] Id. at 1207-08.

[4] Francis J, Vaas, Title VII: Legislative History, 7 B.C. Indus. & Comm. L. Rev. 441, 431 (1966)

[5] Dan Frosch & Ben Chapman, Black Officers Say Discrimination Abounds, Complicating Reform Efforts; In lawsuits and interviews, African-American officers say they have been victims of ‘the same hell’ as many who have been mistreated by law enforcement, Wall St. J. (Online) (16 June 2020), https://www.wsj.com/articles/for-black-police-discrimination-abounds-complicating-reform-efforts-11592299800

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Nicole Hittner, Allyship, 89 Hennepin Law 24, 25 (2000).

[16] See Vass supra note 4.