Retaliation

This Article takes a comprehensive look at retaliation and its place in discrimination law. The Article begins by examining current social science literature to understand how retaliation operates as a social practice to silence challenges to discrimination and preserve inequality. Then, using the recent controversy over whether to imply a private right of action for retaliation from a general ban on discrimination as a launching point, the Article theorizes the connections between retaliation and discrimination as legal constructs, and contends that retaliation should be viewed as a species of intentional discrimination. The Article argues that situating retaliation as a practice that is implicitly encompassed by a ban on discrimination pushes discrimination law in promising directions. Recognizing retaliation as a form of discrimination challenges the dominant anti-differentiation model of discrimination and promotes a broader conception of discrimination as the preservation of race and gender privilege. In addition, recognizing protection from retaliation as implicit in legal proscriptions on discrimination furthers the democratic underpinnings of discrimination law by adding content to the ideal of equal citizenship. Finally, the Article contends that an existing doctrinal constraint on the retaliation claim, the reasonable belief requirement, undermines the potentially progressive role that the retaliation claim can play in realizing its promise for discrimination law. The Article urges a reconsideration of this doctrine to bring the retaliation claim closer to the theory advanced here

Revisiting Title IX\u27s Feminist Legacy: Moving Beyond The Three-Part Test

This essay addresses three issues surrounding Title IX’s application to women’s sports that have been largely eclipsed by the recent controversy over Title IX’s three-part test: the increasingly male composition of athletic leadership positions; the focus on cutting men’s sports as a remedy to discrimination against women; and the role of revenue and massive spending on men’s elite sports in justifying gender inequality in sports. The essay links each of these issues to broader questions and concerns in discrimination law more generally, and concludes that deeper cultural change is necessary to fulfill Title IX’s promise

Tortifying Retaliation: Protected Activity at the Intersection of Fault, Duty, and Causation

In University of Texas Southwestern Medical Center v. Nassar, the Supreme Court broke its string of plaintiff victories in the eight retaliation cases it has decided since 2005. In its 2013 decision in that case, the Court rejected a mixed motive framework for Title VII’s retaliation provision, a part of the statute that Congress did not amend in 1991 when it adopted the motivating factor standard for proving discrimination under Title VII. For help construing what “because of” means in the retaliation claim, the Court looked to tort law, which it read as requiring plaintiffs to prove but-for causation to establish causation in fact. In doing so, the Court extended its turn to tort law in deciding statutory employment discrimination cases into the field of retaliation. The Court’s tort analogy in Nassar seemingly invites courts to explore additional tort-inspired limits on recovery. Even before Nassar, however, lower courts had crafted doctrines sounding in tort to limit what counts as protected activity under the statute. Two of these doctrines bear a strong resemblance to tort law. First, the Title VII reasonable belief doctrine draws on tort-inspired concepts of plaintiff fault to limit recovery for retaliation. Second, lower courts have recently restricted the class of persons protected by the retaliation claim, effectively injecting a tort-like no-duty rule into the employer’s obligation toward employees who have internal anti-discrimination responsibilities. This Article uses the lens of tort law to explain and critique these retaliation doctrines, with an eye toward pressing the tort analogy in a new direction, one that is more deeply grounded in employer fault

Lessons from the Gender Equality Movement: Using Title IX to Foster Inclusive Masculinities in Men\u27s Sport

Symposium: Playing with Pride: LGBT Inclusion in Sport

Retaliation in an EEO World

This Article examines how the prevalence of internal policies and complaint procedures for addressing discrimination in the workplace are affecting legal protections from retaliation. Retaliation has been an unusually active field of law lately. The Supreme Court’s heightened interest in taking retaliation cases in recent years has highlighted the central importance of retaliation protections to the integrity of discrimination law. The Court’s string of plaintiff victories in retaliation cases has earned it the reputation as a pragmatic, pro-employee Court when it comes to retaliation law. However, this view does not account for the proliferation and influence of employer EEO policies and complaint procedures. Reviewing the sociolegal scholarship on the structure and functioning of the EEO workplace reveals important insights into how retaliation law operates. This Article contends that, considered against the backdrop of how employer policies channel employee complaints, the picture of retaliation law for employees is not nearly as rosy as the Court’s decisions have led legal scholars to believe. Focusing on the interplay between retaliation doctrine and employers’ internal discrimination policies, the Article demonstrates that the lesser level of protection afforded to internal discrimination complaints creates stark dilemmas for employees who follow employer policies to complain about perceived inequality in the workplace. Two doctrines in particular, the reasonable belief doctrine and the notice requirement, clash with the role of employer policies in shaping employee perceptions of and responses to discrimination in the workplace. The Article concludes by offering a proposal for revamping retaliation law to better accommodate the realities of the EEO workplace

Retaliation in an EEO World

This Article examines how the prevalence of internal policies and complaint procedures for addressing discrimination in the workplace are affecting legal protections from retaliation. Retaliation has been an unusually active field of law lately. The Supreme Court’s heightened interest in taking retaliation cases in recent years has highlighted the central importance of retaliation protections to the integrity of discrimination law. The Court’s string of plaintiff victories in retaliation cases has earned it the reputation as a pragmatic, pro-employee Court when it comes to retaliation law. However, this view does not account for the proliferation and influence of employer EEO policies and complaint procedures. Reviewing the sociolegal scholarship on the structure and functioning of the EEO workplace reveals important insights into how retaliation law operates. This Article contends that, considered against the backdrop of how employer policies channel employee complaints, the picture of retaliation law for employees is not nearly as rosy as the Court’s decisions have led legal scholars to believe. Focusing on the interplay between retaliation doctrine and employers’ internal discrimination policies, the Article demonstrates that the lesser level of protection afforded to internal discrimination complaints creates stark dilemmas for employees who follow employer policies to complain about perceived inequality in the workplace. Two doctrines in particular, the reasonable belief doctrine and the notice requirement, clash with the role of employer policies in shaping employee perceptions of and responses to discrimination in the workplace. The Article concludes by offering a proposal for revamping retaliation law to better accommodate the realities of the EEO workplace