A Lack of 'Motivation,' or Sound Legal Reasoning? Why Most Courts re Not Applying Either Price Waterhouse's or the 1991 Civil Rights Act's Motivating-Factor Analysis to Title VII Retaliation Claims in a Post-Gross World (But Should)

54 Pages Posted: 30 Apr 2014

See all articles by Lawrence D. Rosenthal

Lawrence D. Rosenthal

Northern Kentucky University - Salmon P. Chase College of Law

Date Written: 2013

Abstract

When Congress enacted the Civil Rights Act of 1991 it did so in response to several Supreme Court decisions that weakened Title VII of the Civil Rights Act of 1964. The 1991 Act addressed both disparate treatment and disparate impact claims, providing plaintiffs with easier routes to prevail in both of these types of claims. The 1991 Act also provided certain plaintiffs with the right to a jury trial and the right to compensatory and punitive damages.

While the 1991 Act clarified some issues regarding Title VII’s antidiscrimination provisions, it failed to address significant issues regarding Title VII’s antiretaliation provision, which prohibits employers from discriminating against individuals who either (1) oppose what they reasonably believe to be unlawful employment practices or (2) participate in Title VII proceedings. While the Court has answered some questions regarding Title VII’s antiretaliation provision since the 1991 Act, it has failed to answer whether Title VII retaliation plaintiffs can benefit from the 1991 Act’s motivating-factor provision.

Keywords: motivating-factor analysis, Title VII, retaliation claim, 1991 Civil Rights Act, antiretaliation provision, remedies

JEL Classification: J71, J7, K10, J20, K40

Suggested Citation

Rosenthal, Lawrence D., A Lack of 'Motivation,' or Sound Legal Reasoning? Why Most Courts re Not Applying Either Price Waterhouse's or the 1991 Civil Rights Act's Motivating-Factor Analysis to Title VII Retaliation Claims in a Post-Gross World (But Should) (2013). 64 Alabama Law Review 1067 (2013), Available at SSRN: https://ssrn.com/abstract=2430921

Lawrence D. Rosenthal (Contact Author)

Northern Kentucky University - Salmon P. Chase College of Law ( email )

Nunn Hall
Highland Heights, KY 41099
United States

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