Parsing Supreme Court Dicta to Adjudicate Non-Workplace Harms

60 Pages Posted: 21 Aug 2008 Last revised: 6 Feb 2009

Date Written: August 21, 2008


When the Supreme Court issued its landmark Title VII decision in Burlington Northern & Santa Fe Railway Co v. White, it concluded that the statute's anti-retaliation provision reaches beyond the workplace to redress non-workplace harms. All of the harms alleged in that case, however, bore a clear and direct relationship to the plaintiff's employment. As such, the Court's instruction on that point was unnecessary. The debate over the dictum-holding distinction is rich, but this Article concludes that the Court's discussion of non-workplace harms in Burlington Northern was indisputably dictum. It is commonplace among the lower federal courts to practice blind adherence to Supreme Court dictum, given the Court's unique institutional position in the federal judiciary, its limited docket, and the predictive value of its advice. Nevertheless, this Article suggests that closer scrutiny of Supreme Court dicta is not only advisable as a policy matter but perhaps even constitutionally compelled. Thus, this Article proposes a framework for independent case-by-case assessment to determine whether Supreme Court dictum warrants precedential effect. It then proceeds to apply that framework in the context of non-workplace harms to demonstrate that blind adherence to the Court's overbroad interpretation of the statute is unadvisable, and that courts should instead review each case independently, guided by the relevant body of law and prevailing policy concerns, to determine whether the alleged harm bears a sufficient nexus to the workplace to warrant Title VII relief.

Keywords: Title VII, retaliation, Burlington Northern, White, dicta, Supreme Court, non-workplace harms

Suggested Citation

Taylor, Lisa Durham, Parsing Supreme Court Dicta to Adjudicate Non-Workplace Harms (August 21, 2008). Drake Law Review, Vol. 57, No. 1, 2008, Available at SSRN: or

Lisa Durham Taylor (Contact Author)

Atlanta's John Marshall Law School ( email )

1422 W. Peachtree Street, N.W.
Atlanta, GA 30309
United States


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