Reading Too Much into What the Court \u3ci\u3eDoesn\u27t\u3c/i\u3e Write: How Some Federal Courts Have Limited Title VII\u27s Participation Clause\u27s Protections after \u3ci\u3eClark County School District v. Breeden\u3c/i\u3e

Abstract

In 2001, the Supreme Court issued its opinion in Clark County School District v. Breeden, in which it refused to determine what a plaintiff must prove to demonstrate that she engaged in “protected activity” under Title VII’s anti-retaliation provision’s opposition clause. Although the Court declined to answer this question, courts have interpreted Breeden as requiring an opposition-clause plaintiff to prove a good-faith, objectively reasonable belief of an unlawful employment practice. Although Breeden involved Title VII’s opposition clause, some courts are now applying Breeden to cases involving Title VII’s participation clause. This is baffling for two reasons. First, Breeden involved the opposition clause, not the participation clause, and prior to Breeden, federal courts had concluded that the participation clause provided more protection than the opposition clause provided. Second, Breeden never definitively established the standard for opposition-clause cases. Despite this, some courts are now applying Breeden’s objectively reasonable standard to participation-clause cases. This Article argues that courts should not apply Breeden in participation-clause cases and should protect participation-clause plaintiffs even if the plaintiffs’ beliefs about unlawful employment practices are unreasonable. Courts should do this because of (1) the participation clause’s plain language; (2) the Equal Employment Opportunity Commission’s (EEOC) position on this issue; (3) the canon of statutory construction that requires remedial statutes such as Title VII to be interpreted broadly; and (4) the fact that Breeden neither addressed the participation clause nor provided a definitive standard for opposition-clause cases

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