Adding Subjective Fuel to the Vague-Standard Fire: A Proposal for Congressional Intervention after Burlington Northern & Santa Fe Railway Co. V. White
University of Pennsylvania Journal of Labor & Employment Law, Forthcoming
Posted: 21 Aug 2008 Last revised: 28 Aug 2008
Date Written: September 21, 2006
The anti-retaliation provision of Title VII of the Civil Rights Act of 1964 protects employees who report perceived workplace discrimination or who otherwise participate in the investigative or enforcement process of alleged Title VII discrimination. The statute provides little guidance, however, as to the scope of this protection. Thus, disagreement abounded among the lower federal courts, not only as to whether the anti-retaliation provision prohibited employer acts outside the workplace as well as within, but also as to the level of severity to which an alleged retaliatory act must rise in order to support a claim. The Supreme Court sought to resolve this disagreement in June 2006 when it decided Burlington Northern & Santa Fe Railway Co. v. White, but its decision fails to supply a clear, judicially administrable standard by which employers can readily abide. Instead, by focusing its inquiry into the statute's language and underlying purposes too narrowly, the Court's decision is plagued by a vague standard with a highly subjective component that insulates employees who engage in protected activity from even the slightest workplace changes. This vague and subjective standard not only lacks sufficient support in the statute but also directly contravenes Title VII's policies of workplace equality, employer forethought, and management prerogative. Moreover, courts will likely struggle to administer this standard with any substantial degree of consistency, and well-meaning employers will find compliance extremely difficult as a result. This Article therefore proposes that Congress intervene to correct the problems that the Court's decision in White creates. Specifically, this Article suggests that Congress amend the anti-retaliation provision so that its language more closely mirrors that found in the statute's core substantive provision, and the better-developed standards thereunder may control discrimination and retaliation claims alike.
Keywords: Title VII, retaliation, adverse action, Burlington Northern, White
Suggested Citation: Suggested Citation