To Report or Not to Report: The Case for Eliminating the Objectively Reasonable Requirement for Opposition Activities Under Title VII's Anti-Retaliation Provision

52 Pages Posted: 1 May 2007 Last revised: 29 Apr 2014

See all articles by Lawrence D. Rosenthal

Lawrence D. Rosenthal

Northern Kentucky University - Salmon P. Chase College of Law

Abstract

Recently, the Fourth Circuit concluded that an employee failed to engage in protected activity under Title VII's anti-retaliation provision's opposition clause when he reported to his employer that, on one occasion, a co-worker used an inflammatory racial slur in the employee's presence. In reaching the conclusion that the plaintiff's complaint did not constitute protected activity, the Fourth Circuit relied on dicta from the Supreme Court's opinion in Clark County School District v. Breeden, in which the Court assumed, without deciding, that to establish protected activity under the opposition clause of Title VII's anti-retaliation provision, a plaintiff must prove not only that she had a subjective, good-faith belief that the behavior she was opposing violated Title VII, but that she must also prove that her belief was objectively reasonable. The Fourth Circuit's opinion places employees in an unenviable position - they must either report a discriminatory remark to the employer and run the risk of being fired for doing so, or they can decide not to report the discriminatory remark, endure the work environment and the discriminatory feelings of co-workers, and then, after eventually enduring the environment to a point where it becomes intolerable, lose a subsequent lawsuit because by failing to report the discriminatory comment or comments, they would have provided the employer with a defense to the substantive discrimination claim. This Article will explore the opposition clause of Title VII's anti-retaliation provision, what constituted "protected activity" under that provision prior to Breeden, and how the Supreme Court's dicta in Breeden and the Fourth Circuit's recent opinion significantly undermine the goals of the anti-retaliation provision's opposition clause. The Article will then suggest that instead of requiring a plaintiff to prove both a subjective, good-faith belief that the practice she was opposing was unlawful and that her belief was objectively reasonable, an employee's subjective, good-faith belief that she experienced unlawful discrimination should be sufficient to gain Title VII protection. Although it is unlikely that this subjective-only approach will be adopted, this approach best promotes the purpose behind Title VII's anti-retaliation provision's opposition clause.

Keywords: Title VII, employment law, anti-retaliation, discrimination

Suggested Citation

Rosenthal, Lawrence D., To Report or Not to Report: The Case for Eliminating the Objectively Reasonable Requirement for Opposition Activities Under Title VII's Anti-Retaliation Provision. 39 Arizona State Law Journal 1127 (2007), Available at SSRN: https://ssrn.com/abstract=983781

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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