Retaliatory Disclosure: When Identifying the Complainant is an Adverse Action

Abstract

Sometimes the possibility of being publicly identified as a complainant will be enough to discourage a person from complaining. That is especially true when being identified as a complainant exposes her to a greater likelihood of reprisal. This paper addresses the circumstances when such publicity can be deemed materially adverse, such that it ought to be sufficient to support a claim of retaliation. We focus on the particular context of claims of employment discrimination, especially pursuant to Title VII of the 1964 Civil Rights Act. When an employee or applicant for employment files a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”), the EEOC undertakes a process that is neither wholly public nor wholly private. The EEOC and its employees are statutorily required to treat the charge confidentially, upon penalty of fine or imprisonment. Nevertheless, charging parties not infrequently publicize the filing of their charge to exploit the possibility that the threat of negative publicity will induce an employer to negotiate or settle. The quasi-public nature of the EEOC’s charge and investigation process has resulted in an important doctrinal gap in Title VII retaliation jurisprudence. While courts have refined the doctrine of statutory retaliation significantly in recent years, most notably in the U.S. Supreme Court’s decision in Burlington Northern & Santa Fe Railway v. White, no unified body of law addresses whether or in what circumstances an employer’s disclosure of the existence and identity of a complainant amounts to a materially adverse action under Title VII. This lack of guidance in the retaliation case law and the facial inapplicability to the parties of Title VII’s confidentiality requirements it places on the EEOC necessitate seeking alternative sources of guidance in cases alleging retaliatory disclosure. We look to several sources of guidance to craft a framework that courts should use when analyzing claims of retaliatory disclosure. First, we look to the guidelines that federal courts use to determine whether a litigant should be allowed to proceed anonymously. Second, the White material adverse action standard focuses on actions that “could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Thus, we look to social science research examining whistleblower motivation to give some guidance on what, in reality, affects an individual’s decision to complain or not complain about a perceived wrongdoing. Finally, we grapple with how to incorporate into our framework of retaliatory disclosure employment discrimination standards that clearly incent employers to take effective remedial action, which may require disclosure of complainant identity.

Keywords: whistleblowing, retaliation, employment discrimination, Title VII

JEL Classification: K31, K41, K42