Title VII's antiretaliation provision: Are employees protected after the employment relationship has ended?

New York University Law Review

Volumn 71, Issue 3, 1996, Pages 797-826

  Tafuri, Sandra ^a  

^a NONE

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EID: 0030496811     PISSN: 00287881     EISSN: None     Source Type: Journal    
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References (181)

1. Civil Rights Act of 1964 § 703, 42 U.S.C. § 2000e-2 (1994). Section 703(a), 42 U.S.C. § 2000e-2(a), states in relevant part: It shall be an unlawful employment practice for an employer - 1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or 2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin. Section 703 is the core antidiscrimination section of Title VII.
2. Civil Rights Act of 1964 § 704(a), 42 U.S.C. § 2000e-3(a) (1994) states in relevant part: It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment . . . because he [the employee] has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter. See infra text accompanying notes 81-86 for a fuller discussion of § 704(a) and its purpose.
3. Civil Rights Act of 1964 § 704(a), 42 U.S.C. § 2000e-3(a).
4. The Second, Third, Fifth, Ninth, Tenth, and Eleventh Circuits have interpreted § 704(a) broadly and have held that § 704(a) prohibits retaliation against former employees. See Charlton v. Paramus Bd. of Educ., 25 F.3d 194, 200 (3d Cir.) (involving former employer who retaliated by initiating procedures to revoke employee's teaching license), cert. denied, 115 S. Ct. 590 (1994); EEOC v. J.M. Huber Corp., 927 F.2d 1322, 1331 (5th Cir. 1991) (involving former employer withholding retirement and profit-sharing benefits from former employee); Sherman v. Burke Contracting, Inc., 891 F.2d 1527, 1532 (11th Cir.) (involving former employer who persuaded new employer to fire former employee), cert. denied, 498 U.S. 943 (1990); Bailey v. USX Corp., 850 F.2d 1506, 1509-10 (11th Cir. 1988) (involving negative reference by former employer); O'Brien v. Sky Chefs, Inc., 670 F.2d 864, 869 (9th Cir. 1982) (holding former employer's refusal to rehire and negative recommendations sufficient for employee to assert retaliation claim); Pantchenko v. C.B. Dolge Co., 581 F.2d 1052, 1055 (2d Cir. 1978) (involving employer who refused to provide references and made disparaging statements about former employee to prospective employers); Rutherford v. American Bank of Commerce, 565 F.2d 1162, 1165-66 (10th Cir. 1977) (involving former employer who advised former employee's prospective employers that employee had filed Title VII sex discrimination suit).
5. Presently, the Fourth and Seventh Circuits are the only circuit courts to interpret § 704(a) narrowly. See Robinson v. Shell Oil Co., 70 F.3d 325, 327 (4th Cir. 1995) (en banc) (involving allegations that former employer gave false information and negative job references to prospective employers), cert. granted, No. 95-1376, 1996 WL 97912 (U.S. Apr. 22, 1996); Reed v. Shepard, 939 F.2d 484, 492-93 (7th Cir. 1991) (involving allegations that employer made late-night phone calls and threatened former employee).
6. Polsby v. Chase, 970 F.2d 1360, 1365 (4th Cir. 1992), vacated on other grounds, 113 S. Ct. 1940 (1993).
7. Robinson v. Shell Oil Co., No. 93-1562, 1995 WL 25831 (4th Cir. Jan. 18, 1995), vacated and reh'g granted en banc, on reh'g, 70 F.3d 325 (4th Cir. 1995), cert. granted, No. 95-1376, 1996 WL 97912 (U.S. Apr. 22, 1996).
8. Robinson, 70 F.3d at 332 (en banc). The Fourth Circuit's interesting history on the reach of § 704(a) demonstrates the division among judges on this issue. In Polsby, the Fourth Circuit held as an alternative ground that § 704(a) did not apply to postemployment retaliation. Polsby, 970 F.2d at 1367. The initial ground for denying the plaintiff retaliation relief was a finding that the plaintiff had failed to bring her claim within the 30-day limit. Id. at 1364. The Supreme Court granted certiorari and vacated the Polsby decision. Polsby v. Shalala, 113 S. Ct. 1940 (1993). The Supreme Court did not address the question of whether § 704(a) applied to postemployment retaliation because the Court agreed with respondent that the case did not "provide a suitable occasion" for the Supreme Court to resolve this issue since neither party had briefed or argued the issue in the court of appeals. See Brief for Respondents at 7, Polsby v. Shalala, 113 S. Ct. 1940 (1993) (No. 92-966) (on file with the New York University Law Review). The Court vacated and remanded on the issue of whether the plaintiff was on notice, by posters or otherwise, of the time limits for pursuing her Title VII claims. Polsby v. Shalala, 113 S. Ct. 1940 (1993). In Robinson, the Fourth Circuit took the fact that the Supreme Court had vacated Polsby as an opportunity to "ask anew whether the protection against retaliation afforded by Title VII to 'employees' extends to former employees." Robinson, 1995 WL 25831, at *1. In a panel decision, it initially reversed its position in Polsby and joined the majority of the courts in interpreting § 704(a) broadly. Id. at *2 (Hall, J., and Michael, J., with Hamilton, J., dissenting). That panel decision was subsequently vacated and an en banc hearing was granted. In its en banc decision, the Fourth Circuit created a decisive split among the circuits and held that § 704(a) did not extend to former employees. Robinson, 70 F.3d at 332 (en banc). On April 22, 1996, the United States Supreme Court granted a petition of certiorari to review this issue. Robinson v. Shell Oil Co., No. 95-1376, 1996 WL 97912 (U.S. Apr. 22, 1996).
9. Under § 704(a), it is also unlawful for an employer to retaliate because the employee has opposed an unlawful employment practice or has testified, assisted, or participated in any investigation, proceeding, or hearing under Title VII. Civil Rights Act of 1964 § 704(a), 42 U.S.C. § 2000e-3(a).
10. Robinson, 70 F.3d at 327 (en banc).
11. Id.
12. 565 F.2d 1162 (10th Cir. 1977).
13. Id. at 1163.
14. Id. at 1163-64.
15. 891 F.2d 1527 (11th Cir.), cert. denied, 498 U.S. 943 (1990).
16. Id. at 1529.
17. Id.
18. For examples of retaliatory acts affecting former employees' employment opportunities, see infra notes 93-97 and accompanying text.
19. For examples of such "personal" retaliation, see infra notes 158-62 and accompanying text.
20. See infra notes 81-86 and accompanying text for discussion of the critical role of individual initiative in Title VII's framework.
21. See infra notes 83-85 and accompanying text for discussion of how fear of employer retaliation inhibits employee filing of Title VII claims.
22. Robinson v. Shell Oil Co., 70 F.3d 325, 328-29 (4th Cir. 1995) (en banc), cert. granted, No. 95-1376, 1996 WL 97912 (U.S. Apr. 22, 1996); Robinson v. Shell Oil Co., No. 93-1562, 1995 WL 25831, at *4 (4th Cir. Jan. 18, 1995) (Hamilton, J., dissenting), vacated and reh'g granted en banc, on reh'g, 70 F.3d 325 (4th Cir. 1995), cert. granted, No. 95-1376, 1996 WL 97912 (U.S. Apr. 22, 1996).
23. Robinson, 70 F.3d at 329-31 (en banc); Robinson, 1995 WL 25831, at *4-*5 (Hamilton, J., dissenting); Polsby v. Chase, 970 F.2d 1360, 1365 (4th Cir. 1992), vacated on other grounds, 113 S. Ct. 1940 (1993); Sherman v. Burke Contracting, Inc., 891 F.2d 1527, 1540 (11th Cir.) (Tjoflat, C.J., concurring), cert. denied, 498 U.S. 943 (1990).
24. Robinson, 70 F.3d at 329-31 (en banc); Robinson, 1995 WL 25831, at *4-*5 (Hamilton, J., dissenting); Polsby, 970 F.2d at 1365; Sherman, 891 F.2d at 1540 (Tjoflat, C.J., concurring).
25. Civil Rights Act of 1964 § 703(a), 42 U.S.C. § 2000e-3 (1994) (emphasis added); see, e.g., Polsby, 970 F.2d at 1365; Sherman, 891 F.2d at 1540 (Tjoflat, C.J., concurring).
26. 42 U.S.C. § 2000e(f) (1994); see also Robinson, 1995 WL 25831, at *5 (relying on statutory definition of employee).
27. Robinson, 70 F.3d at 330 (en banc); Robinson, 1995 WL 25831, at *5 (Hamilton, J., dissenting).
28. Robinson, 70 F.3d at 330 (en banc); Polsby, 970 F.2d at 1365; Sherman, 891 F.2d at 1540-41 (Tjoflat, C.J., concurring).
29. There are two exceptions that allow courts to go beyond the plain language of unambiguous statutes. One is when a literal application would lead to an absurd result. Robinson, 70 F.3d at 329 (en banc); Polsby, 970 F.2d at 1367. The other is when a literal application would produce a result at odds with the intent of Congress. Robinson, 70 F.3d at 329 (en banc); Polsby, 970 F.2d at 1367. See infra text accompanying notes 52-60 for a discussion of these exceptions.
30. As will be discussed in Part II, infra, this application of statutory interpretation guidelines has not been universally accepted, and courts have looked beyond the statute's literal meaning to expand Title VII's retaliation protection.
31. See supra note 1 and accompanying text.
32. Civil Rights Act of 1964 § 703(a)(1), 42 U.S.C. § 2000e-2(a).
33. See Robinson, 70 F.3d at 330 (en banc) (interpreting statute as excluding former employers from definition of employee). But see Shehadeh v. Chesapeake & Potomac Tel. Co., 595 F.2d 711, 721 (D.C. Cir. 1978) (interpreting § 703(a) broadly to encompass post-employment discrimination). The court found that even though there was no formal employment relationship, the employer's providing an adverse reference constituted an unlawful employment practice when the basis for doing so was discriminatory. Id. at 720-23. In deciding to give § 703(a) a broad interpretation, the court placed a high premium on Title VII's purpose of "equality of employment opportunities." Id. at 721.
34. Reed v. Shepard, 939 F.2d 484, 492 (7th Cir. 1991).
35. See, e.g., id. at 493 ("Under [§ 704(a)], it is an employee's discharge or other employment impairment that evidences actionable retaliation, and not events subsequent to and unrelated to his employment."); see also Robinson, 70 F.3d at 331 (en banc) (relying on and citing Reed for this argument).
36. Robinson, 70 F.3d at 331 (en banc); Reed, 939 F.2d at 492.
37. Polsby v. Chase, 970 F.2d 1360, 1366 (4th Cir. 1992), vacated on other grounds, 113 S. Ct. 1940 (1993); Sherman v. Burke Contracting, Inc. 891 F.2d 1527, 1536-37 (11th Cir.) (Tjoflat, C.J., concurring), cert. denied, 498 U.S. 943 (1990). The relevant section of Title VII, § 706(g), 42 U.S.C. § 2000e-5(g) (1994), provides: If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay . . . or any other equitable relief as the court deems appropriate.
38. Compare 42 U.S.C. § 2000e-5(g) with Civil Rights Act of 1991 § 102, 42 U.S.C. § 1981(a)(1) (1994), which now provides Title VII claimants the right to compensatory and punitive damages. See also infra text accompanying notes 122-28.
39. Polsby, 970 F.2d at 1366 n.5 (pointing out that reinstatement would not be an option, except for employee who was unlawfully terminated "in retaliation for the employee seeking redress under Title VII").
40. See infra text accompanying notes 45-48. But see Sherman, 891 F.2d at 1535 (awarding $10,000 in future pay representing salary from time former employee would have been hired by prospective employer until time of trial).
41. Polsby, 970 F.2d at 1366; see also Sherman, 891 F.2d at 1536-37 (Tjoflat, C.J., concurring).
42. See Polsby, 970 F.2d at 1366 (arguing that § 704(a) should be used against prospective employers); Reed v. Shepard, 939 F.2d 484, 493 (7th Cir. 1991) (suggesting that former employee who was physically attacked seek state law damage claims and criminal charges); Sherman, 891 F.2d at 1538, 1541-42 (Tjoflat, C.J., concurring) (arguing that § 704(a) should be used against prospective employers and asserting availability of state tort remedies when employer maliciously and intentionally interferes with former employee's contract with new employer and common law remedies under tort of interference with prospective economic advantage when former employer interferes with prospective job opportunity).
43. 42 U.S.C. § 2000e-3(a); Polsby, 970 F.2d at 1366; Sherman, 891 F.2d at 1538.
44. See cases cited supra note 43.
45. See, e.g., Polsby, 970 F.2d at 1366.
46. See, e.g., Robinson v. Shell Oil Co., No. 93-1562, 1995 WL 25831, at *8 (4th Cir. Jan. 18, 1995) (Hamilton, J., dissenting) (expressing concern that broad interpretation will produce "absurd results" of stale claims), vacated and reh'g granted en banc, on reh'g, 70 F.3d 325 (4th Cir. 1995), cert. granted, No. 95-1376, 1996 WL 97912 (U.S. Apr. 22, 1996).
47. See Polsby, 970 F.2d at 1366 (en banc); Sherman, 891 F.2d at 1538.
48. Polsby, 970 F.2d at 1366 (concluding that formulating relief for former employee "entails calculating future damages and is far too speculative"). The Polsby court provided examples of the problems that would be encountered in formulating relief for a former employee and concluded that such calculations would be speculative. First, it pointed out that reinstatement would not be an option (except for an employee who was unlawfully terminated "in retaliation for the employee seeking redress under Title VII"). Id. at 1366 n.5. The court then gave an illustration of an employer giving poor references in retaliation to a former employee. The court stressed that: [T]he employee would have to show that but for the poor references, she would have received one of the jobs she was seeking. If successful, she then must give the court evidence as to which job, pay scale, promotions, bonuses, etc. . . ., she would have received. Because employment opportunities greatly differ from each other, speculation would necessarily rule any calculations. Id. at 1366 (citing Sherman, 891 F.2d at 1538 (Tjoflat, C.J., concurring) (citations omitted)).
49. Robinson, No. 93-1562, 1995 WL 25831, at *3 (Hamilton, J., dissenting).
50. Id. at *8.
51. Id. at *3. Judge Hamilton gives the following example: [S]uppose Employee X, a minority, files a race discrimination charge against his employer, Company A. In retaliation, Employee X's supervisor falsely adds negative performance comments to Employee X's personnel file. Employee X leaves Company A and accepts a job with Company B; thirty years pass. Employee X leaves Company B and seeks a new job with Company C who requests recommendations of X from A and B. Employee X's supervisor at Company A died five years earlier; his replacement researches Employee X's personnel file and writes a negative recommendation according to the information in Employee X's file. Under the majority's holding, Employee X can bring a suit under § 704(a), alleging retaliation against Company A for conduct that occurred thirty years earlier by a person no longer employed, let alone deceased. Id. at *8.
52. Many articles discuss the use and proper role of legislative history in statutory interpretation. See, e.g., Stephen Breyer, On the Uses of Legislative History in Interpreting Statutes, 1991 Justice Lester W. Roth Lecture, 65 S. Cal. L. Rev. 845, 847 (1992) (defending, on pragmatic grounds, clinical practice of using legislative history); Maxwell O. Chibundu, Structure and Structuralism in the Interpretation of Statutes, 62 U. Cin. L. Rev. 1439, 1495-1540 (1994) (using federal securities law to explore use of structure and structuralism in statutory interpretation); Frank H. Easterbrook, Text, History and Structure in Statutory Interpretation, 17 Harv. J.L. & Pub. Pol'y 61, 67-70 (1994) (listing eight propositions supporting position that text and structure, rather than legislative history and intent, supply appropriate foundation meaning); William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation As Practical Reasoning, 42 Stan. L. Rev. 321, 322 (1990) (favoring modest and practical approach to statutory interpretation); Daniel A. Farber, Statutory Interpretation and Legislative Supremacy, 78 Geo. L.J. 281, 281-83 (1989) (exploring principle that judges are constrained by language and intent); Geoffrey P. Miller, Pragmatics and the Maxims of Interpretation, 1990 Wis. L. Rev. 1179, 1209-20 (taking renewed look at statutory maxims and interpretation); Martin H. Redish & Theodore T. Chung, Democratic Theory and the Legislative Process: Mourning the Death of Originalism in Statutory Interpretation, 68 Tul. L. Rev. 803, 807-09 (1994) (proposing "textualist originalism," through which judges respect policymaking power of Congress while consulting legislative sources to best interpret text of statutes).
53. Many articles discuss the use and proper role of legislative history in statutory interpretation. See, e.g., Stephen Breyer, On the Uses of Legislative History in Interpreting Statutes, 1991 Justice Lester W. Roth Lecture, 65 S. Cal. L. Rev. 845, 847 (1992) (defending, on pragmatic grounds, clinical practice of using legislative history); Maxwell O. Chibundu, Structure and Structuralism in the Interpretation of Statutes, 62 U. Cin. L. Rev. 1439, 1495-1540 (1994) (using federal securities law to explore use of structure and structuralism in statutory interpretation); Frank H. Easterbrook, Text, History and Structure in Statutory Interpretation, 17 Harv. J.L. & Pub. Pol'y 61, 67-70 (1994) (listing eight propositions supporting position that text and structure, rather than legislative history and intent, supply appropriate foundation meaning); William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation As Practical Reasoning, 42 Stan. L. Rev. 321, 322 (1990) (favoring modest and practical approach to statutory interpretation); Daniel A. Farber, Statutory Interpretation and Legislative Supremacy, 78 Geo. L.J. 281, 281-83 (1989) (exploring principle that judges are constrained by language and intent); Geoffrey P. Miller, Pragmatics and the Maxims of Interpretation, 1990 Wis. L. Rev. 1179, 1209-20 (taking renewed look at statutory maxims and interpretation); Martin H. Redish & Theodore T. Chung, Democratic Theory and the Legislative Process: Mourning the Death of Originalism in Statutory Interpretation, 68 Tul. L. Rev. 803, 807-09 (1994) (proposing "textualist originalism," through which judges respect policymaking power of Congress while consulting legislative sources to best interpret text of statutes).
54. Many articles discuss the use and proper role of legislative history in statutory interpretation. See, e.g., Stephen Breyer, On the Uses of Legislative History in Interpreting Statutes, 1991 Justice Lester W. Roth Lecture, 65 S. Cal. L. Rev. 845, 847 (1992) (defending, on pragmatic grounds, clinical practice of using legislative history); Maxwell O. Chibundu, Structure and Structuralism in the Interpretation of Statutes, 62 U. Cin. L. Rev. 1439, 1495-1540 (1994) (using federal securities law to explore use of structure and structuralism in statutory interpretation); Frank H. Easterbrook, Text, History and Structure in Statutory Interpretation, 17 Harv. J.L. & Pub. Pol'y 61, 67-70 (1994) (listing eight propositions supporting position that text and structure, rather than legislative history and intent, supply appropriate foundation meaning); William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation As Practical Reasoning, 42 Stan. L. Rev. 321, 322 (1990) (favoring modest and practical approach to statutory interpretation); Daniel A. Farber, Statutory Interpretation and Legislative Supremacy, 78 Geo. L.J. 281, 281-83 (1989) (exploring principle that judges are constrained by language and intent); Geoffrey P. Miller, Pragmatics and the Maxims of Interpretation, 1990 Wis. L. Rev. 1179, 1209-20 (taking renewed look at statutory maxims and interpretation); Martin H. Redish & Theodore T. Chung, Democratic Theory and the Legislative Process: Mourning the Death of Originalism in Statutory Interpretation, 68 Tul. L. Rev. 803, 807-09 (1994) (proposing "textualist originalism," through which judges respect policymaking power of Congress while consulting legislative sources to best interpret text of statutes).
55. Many articles discuss the use and proper role of legislative history in statutory interpretation. See, e.g., Stephen Breyer, On the Uses of Legislative History in Interpreting Statutes, 1991 Justice Lester W. Roth Lecture, 65 S. Cal. L. Rev. 845, 847 (1992) (defending, on pragmatic grounds, clinical practice of using legislative history); Maxwell O. Chibundu, Structure and Structuralism in the Interpretation of Statutes, 62 U. Cin. L. Rev. 1439, 1495-1540 (1994) (using federal securities law to explore use of structure and structuralism in statutory interpretation); Frank H. Easterbrook, Text, History and Structure in Statutory Interpretation, 17 Harv. J.L. & Pub. Pol'y 61, 67-70 (1994) (listing eight propositions supporting position that text and structure, rather than legislative history and intent, supply appropriate foundation meaning); William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation As Practical Reasoning, 42 Stan. L. Rev. 321, 322 (1990) (favoring modest and practical approach to statutory interpretation); Daniel A. Farber, Statutory Interpretation and Legislative Supremacy, 78 Geo. L.J. 281, 281-83 (1989) (exploring principle that judges are constrained by language and intent); Geoffrey P. Miller, Pragmatics and the Maxims of Interpretation, 1990 Wis. L. Rev. 1179, 1209-20 (taking renewed look at statutory maxims and interpretation); Martin H. Redish & Theodore T. Chung, Democratic Theory and the Legislative Process: Mourning the Death of Originalism in Statutory Interpretation, 68 Tul. L. Rev. 803, 807-09 (1994) (proposing "textualist originalism," through which judges respect policymaking power of Congress while consulting legislative sources to best interpret text of statutes).
56. Many articles discuss the use and proper role of legislative history in statutory interpretation. See, e.g., Stephen Breyer, On the Uses of Legislative History in Interpreting Statutes, 1991 Justice Lester W. Roth Lecture, 65 S. Cal. L. Rev. 845, 847 (1992) (defending, on pragmatic grounds, clinical practice of using legislative history); Maxwell O. Chibundu, Structure and Structuralism in the Interpretation of Statutes, 62 U. Cin. L. Rev. 1439, 1495-1540 (1994) (using federal securities law to explore use of structure and structuralism in statutory interpretation); Frank H. Easterbrook, Text, History and Structure in Statutory Interpretation, 17 Harv. J.L. & Pub. Pol'y 61, 67-70 (1994) (listing eight propositions supporting position that text and structure, rather than legislative history and intent, supply appropriate foundation meaning); William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation As Practical Reasoning, 42 Stan. L. Rev. 321, 322 (1990) (favoring modest and practical approach to statutory interpretation); Daniel A. Farber, Statutory Interpretation and Legislative Supremacy, 78 Geo. L.J. 281, 281-83 (1989) (exploring principle that judges are constrained by language and intent); Geoffrey P. Miller, Pragmatics and the Maxims of Interpretation, 1990 Wis. L. Rev. 1179, 1209-20 (taking renewed look at statutory maxims and interpretation); Martin H. Redish & Theodore T. Chung, Democratic Theory and the Legislative Process: Mourning the Death of Originalism in Statutory Interpretation, 68 Tul. L. Rev. 803, 807-09 (1994) (proposing "textualist originalism," through which judges respect policymaking power of Congress while consulting legislative sources to best interpret text of statutes).
57. Many articles discuss the use and proper role of legislative history in statutory interpretation. See, e.g., Stephen Breyer, On the Uses of Legislative History in Interpreting Statutes, 1991 Justice Lester W. Roth Lecture, 65 S. Cal. L. Rev. 845, 847 (1992) (defending, on pragmatic grounds, clinical practice of using legislative history); Maxwell O. Chibundu, Structure and Structuralism in the Interpretation of Statutes, 62 U. Cin. L. Rev. 1439, 1495-1540 (1994) (using federal securities law to explore use of structure and structuralism in statutory interpretation); Frank H. Easterbrook, Text, History and Structure in Statutory Interpretation, 17 Harv. J.L. & Pub. Pol'y 61, 67-70 (1994) (listing eight propositions supporting position that text and structure, rather than legislative history and intent, supply appropriate foundation meaning); William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation As Practical Reasoning, 42 Stan. L. Rev. 321, 322 (1990) (favoring modest and practical approach to statutory interpretation); Daniel A. Farber, Statutory Interpretation and Legislative Supremacy, 78 Geo. L.J. 281, 281-83 (1989) (exploring principle that judges are constrained by language and intent); Geoffrey P. Miller, Pragmatics and the Maxims of Interpretation, 1990 Wis. L. Rev. 1179, 1209-20 (taking renewed look at statutory maxims and interpretation); Martin H. Redish & Theodore T. Chung, Democratic Theory and the Legislative Process: Mourning the Death of Originalism in Statutory Interpretation, 68 Tul. L. Rev. 803, 807-09 (1994) (proposing "textualist originalism," through which judges respect policymaking power of Congress while consulting legislative sources to best interpret text of statutes).
58. Many articles discuss the use and proper role of legislative history in statutory interpretation. See, e.g., Stephen Breyer, On the Uses of Legislative History in Interpreting Statutes, 1991 Justice Lester W. Roth Lecture, 65 S. Cal. L. Rev. 845, 847 (1992) (defending, on pragmatic grounds, clinical practice of using legislative history); Maxwell O. Chibundu, Structure and Structuralism in the Interpretation of Statutes, 62 U. Cin. L. Rev. 1439, 1495-1540 (1994) (using federal securities law to explore use of structure and structuralism in statutory interpretation); Frank H. Easterbrook, Text, History and Structure in Statutory Interpretation, 17 Harv. J.L. & Pub. Pol'y 61, 67-70 (1994) (listing eight propositions supporting position that text and structure, rather than legislative history and intent, supply appropriate foundation meaning); William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation As Practical Reasoning, 42 Stan. L. Rev. 321, 322 (1990) (favoring modest and practical approach to statutory interpretation); Daniel A. Farber, Statutory Interpretation and Legislative Supremacy, 78 Geo. L.J. 281, 281-83 (1989) (exploring principle that judges are constrained by language and intent); Geoffrey P. Miller, Pragmatics and the Maxims of Interpretation, 1990 Wis. L. Rev. 1179, 1209-20 (taking renewed look at statutory maxims and interpretation); Martin H. Redish & Theodore T. Chung, Democratic Theory and the Legislative Process: Mourning the Death of Originalism in Statutory Interpretation, 68 Tul. L. Rev. 803, 807-09 (1994) (proposing "textualist originalism," through which judges respect policymaking power of Congress while consulting legislative sources to best interpret text of statutes).
59. See United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989) (beginning inquiry about postpetition interest with language of Bankruptcy Code); Transamerica Mortgage Advisors, Inc. (TAMA) v. Lewis, 444 U.S. 11, 16 (1979) ("We begin with the language of the statute itself.").
60. Caminetti v. United States, 242 U.S. 470, 485 (1917); see also, e.g., Ron Pair Enters., 489 U.S. at 241 (ending inquiry into meaning of statute at its plain language where language expresses Congress's intent with sufficient precision so that review of legislative history and precode practice is unnecessary).
61. Ron Pair Enters., 489 U.S. at 242.
62. See, e.g., Hubbard v. United States, 115 S. Ct. 1754, 1759, 1765 (1995) (using straight-forward reading to define word "department"); Public Citizen v. United States Dep't of Justice, 491 U.S. 440, 470-71 (1989) (Kennedy, J., concurring) (urging use of absurdity exception only when Congress could not possibly have intended result); FBI v. Abramson, 456 U.S. 615, 640 (1982) (O'Connor, J., dissenting) (citing rule from United States v. Brown, 333 U.S. 18 (1948), but finding that Court is not claiming presence of absurd results); Brown, 333 U.S. at 27 (finding that no rule requires Court to accept an interpretation that leads to "patently absurd results"); Crooks v. Harrelson, 282 U.S. 55, 59-60 (1930) (finding that absurdity exception should be used rarely).
63. See supra text accompanying note 26.
64. Robinson v. Shell Oil Co., 70 F.3d 325, 335 (4th Cir. 1995) (en banc) (Hall, J., dissenting), cert. granted, No. 95-1376, 1996 WL 97912 (U.S. Apr. 22, 1996). Judge Hall explains that "employ" is used in many ways. For example, "employee" may be used to describe the current contractual relationship between a company and a designated worker, or a manufacturing concern may be described as a "major 'employer'" without regard to any particular worker. Id. at 335 & n.9 (Hall, J., dissenting). Similarly, retirees with long service are sometimes introduced "as a long-time 'employee' of the company." Id. (Hall, J., dissenting).
65. Id. (Hall, J., dissenting).
66. Id. (Hall, J., dissenting) (deciding to interpret term "employee" consistently with "the clear intent of Congress to effectively remedy the problem of discrimination in employment").
67. See Edward C. Walterscheid, A Question of Retaliation: Opposition Conduct as Protected Expression Under Title VII of the Civil Rights Act of 1964, 29 B.C. L. Rev. 391, 393 (1988) (stating that there is an "almost total absence of any legislative history" on § 704(a) and that committee reports "simply repeat certain language of Section 704(a) without any explanation of its meaning" (citation omitted)).
68. See Interpretative Memorandum on Title VII (1964), reprinted in Equal Employment Opportunity Comm'n, Legislative History of Titles VII and XI of the Civil Rights Act of 1964, at 3040 (1969) (making no relevant statements concerning whether § 704(a) applies to former employers). The Interpretive Memorandum on Title VII only states that § 704(a) "prohibits discrimination by an employer or labor organization against persons for opposing discriminatory practices, and for bringing charges before the commission or otherwise participating in proceedings under the title." Id.
69. See, e.g., Charlton v. Paramus Bd. of Educ., 25 F.3d 194, 200 n.6 (3d Cir.) (noting Supreme Court's "favorabl[e]" look upon interpretations of remedial statutes consistent with purpose (citing NLRB v. Scrivener, 405 U.S. 117, 122 (1972))), cert. denied, 115 S. Ct. 590 (1994).
70. Holy Trinity Church v. United States, 143 U.S. 457, 463 (1892) (holding that Congress did not intend to include ministers in specified group of laborers).
71. See, e.g., Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960) (refusing to limit Copyright Act's excuse of notice to its literal words).
72. Pantchenko v. C.B. Dolge Co., 581 F.2d 1052, 1055 (2d Cir. 1978) (quoting Judge Learned Hand in FDIC v. Tremaine, 133 F.2d 827, 830 (2d Cir. 1943)).
73. Peter Pan Fabrics, 274 F.2d at 489 (citing Holy Trinity Church, 143 U.S. at 457); see also Watt v. State of Alaska, 451 U.S. 259, 266 & n.9 (1981) (interpreting Wildlife Refuge Revenue Sharing Act of 1935 and citing Markham v. Cabell, 326 U.S. 404 (1945)); Cabell, 326 U.S. at 406-07 (limiting statute because of its enactment after outbreak of war); Lewis v. Grinker, 965 F.2d 1206, 1215 (2d Cir. 1992) (citing Cabell in interpreting amendment to complex statute that produced probable unintended result); CIA Petrolera Caribe, Inc. v. Arco Caribbean, Inc., 754 F.2d 404, 428-29 (1st Cir. 1985) (interpreting Clayton Act and relying on principle of trying to effectuate congressional goals); Cawley v. United States, 272 F.2d 443, 445 (2d Cir. 1959) (putting court in position of legislature and expanding scope of recovery in light of purposes of Congress).
74. Schultz v. Louisiana Trailer Sales, Inc., 428 F.2d 61, 64-65 (5th Cir.) (citing Shapiro v. United States, 335 U.S. 1, 31 (1948), in holding that when statute has more than one possible meaning, purposes of drafters should be obeyed rather than frustrated), cert. denied, 400 U.S. 902 (1970).
75. West Virginia Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 100 (1991) (discussing expert fees under 42 U.S.C. § 1988), superseded by statute as stated in Stender v. Lucky Stores, 780 F. Supp. 1302 (N.D. Cal. 1992).
76. See, e.g., International Union v. Johnson Controls, Inc., 499 U.S. 187, 205-06 (1991) (inferring congressional intent from language of statute, legislative history, and other sources); Price Waterhouse v. Hopkins, 490 U.S. 228, 243-44 (1989) (relying on Title VII's interpretative memorandum entered into congressional record by Senators Case and Clark for definition of discrimination); United Steelworkers of Am. v. Weber, 443 U.S. 193, 200-04 (1979) (determining that affirmative action plans are not in violation of Title VII after examining legislative history and historical context of Title VII); Coles v. Penny, 531 F.2d 609, 614-15 (D.C. Cir. 1976) (interpreting term "notice" liberally to effectuate history of legislation and purposes of Title VII).
77. See, e.g., Rutherford v. American Bank of Commerce, 565 F.2d 1162, 1165 (10th Cir. 1977) (stating that Title VII is remedial in nature); Bell v. Brown, 557 F.2d 849, 853 (D.C. Cir. 1977) (same); Coles, 531 F.2d at 615 (same).
78. Bell, 557 F.2d at 853 (determining that Title VII's § 717(c) requirement that federal employees file a civil action "(w)ithin thirty days of receipt of notice" means personal receipt by affected employee); see also Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888, 892 (11th Cir. 1986) (concluding that discrimination against employee based on employee's interracial marriage states claim under Title VII); Coles, 531 F.2d at 616 (interpreting term "notice" in § 717(c) broadly to effectuate "the broad humanitarian and remedial purposes underlying" Title VII); Culpepper v. Reynolds Metals Co., 421 F.2d 888, 891 (5th Cir. 1970) (reaffirming that Title VII should receive liberal construction).
79. See Parr, 791 F.2d at 892; Culpepper, 421 F.2d at 891.
80. See, e.g., United Steelworkers, 443 U.S. at 201-04 (interpreting prohibition against racial discrimination in § 703(a) and (d) of Title VII against Title VII's background and historical context).
81. Culpepper, 421 F.2d at 891. The court noted that this sentiment had been echoed by the Honorable Griffin B. Bell, Judge, United States Court of Appeals for the Fifth Circuit. In a speech at a Title VII seminar, Bell stated: We think that the statute as enacted by Congress is designed to eliminate an unfortunate chapter in our history, when persons have been denied jobs simply by reasons of their race. Therefore, we approach the statute in a generous way. We want to make it work. We want to fill in these gaps, and we want to stay within the intent of Congress in making it work. Id. at 891 n.3.
82. See supra text accompanying notes 64-70.
83. See Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, 1972 U.S.C.C.A.N. (86 Stat.) 122 (stating that Title VII's goal is to "further promote equal employment opportunities for American workers"); see also Local 28 of the Sheet Metal Workers' Int'l Ass'n v. EEOC, 478 U.S. 421, 423 (1986) (stating that Title VII guarantees equal employment opportunity).
84. See Culpepper, 421 F.2d at 891.
85. Sherman v. Burke Contracting, Inc., 891 F.2d 1527, 1536 (11th Cir.) (Tjoflat, C.J., concurring) (citation omitted), cert. denied, 498 U.S. 943 (1990).
86. The EEOC elaborates: "To discriminate is to make a distinction, to make a difference in treatment or favor, and those distinctions or differences in treatment or favor which are prohibited . . . are those which are based on any five of the forbidden criteria: race, color, religion, sex, and national origin." Interpretative Memorandum on Title VII, supra note 62, reprinted in Equal Employment Opportunity Comm'n, Legislative History of Titles VII and XI of the Civil Rights Act of 1964, at 3039-40 (1969).
87. See Proulx v. Citibank, N.A., 659 F. Supp. 972, 978 (S.D.N.Y. 1987) (stating that "'enforcement of Title VII rights is necessarily dependent on individual complaints'" (quoting Weinfeld, J., in EEOC v. Kallir, Philips, Ross, Inc., 401 F. Supp. 66, 72 (S.D.N.Y. 1975))); H.R. Rep. No. 40, 102d Cong., 1st Sess., pt. 1, at 70 (1991), reprinted in 1991 U.S.C.C.A.N. 603, 608 (recognizing that Title VII is enforced by individuals); 2 EEOC Compl. Man. (BNA) § 614.1(f)(2), at 614:0007 (Apr. 1988) (stating that "[i]f retaliation for engaging in such protected activity were permitted to go unremedied, it would have a chilling effect upon the willingness of individuals to speak out against employment discrimination"); Nancy J. Sedmak & Michael D. Levin-Epstein, Primer on Equal Employment Opportunity 141 (5th ed. 1991) (stating that "[t]he provisions forbidding retaliatory action are not self-enforcing").
88. Civil Rights Act of 1964 § 704(a), 42 U.S.C. § 2000e-3(a).
89. Vasconcelos v. Meese, 907 F.2d 111, 113 (9th Cir. 1990) (quoting Sias v. City Demonstration Agency, 588 F.2d 692, 695 (9th Cir. 1978)); see also 2 EEOC Compl. Man. (BNA) § 614.1(f)(2), at 614:0007 (discussing the ramifications of not protecting employees against retaliation).
90. 2 EEOC Compl. Man. (BNA) § 614.1(a), at 614:0001.
91. Id. § 614.1(f), at 614:0006.
92. Id. § 614.1(f), at 614:0006-0007.
93. H.R. Rep. No. 40, supra note 81, pt. 1, at 71, reprinted in 1991 U.S.C.C.A.N. at 609.
94. Id. (reprinting parts of testimony before the Committee).
95. Id.
96. See infra text accompanying notes 93-97 for examples of postemployment retaliation.
97. Rutherford v. American Bank of Commerce, 565 F.2d 1162, 1165-66 (10th Cir. 1977) (citing Dunlop v. Carriage Carpet Co., 548 F.2d 139, 147 (6th Cir. 1977)).
98. E.g., Hodgson v. Martin Inspectors of Petroleum, Inc., 459 F.2d 303, 306 (5th Cir. 1972).
99. E.g., Pantchenko v. C.B. Dolge Co., 581 F.2d 1052, 1054 (2d Cir. 1978).
100. E.g., Sherman v. Burke Contracting, Inc., 891 F.2d 1527, 1529 (11th Cir.), cert. denied, 498 U.S. 943 (1990).
101. E.g., Charlton v. Paramus Bd. of Educ., 25 F.3d 194, 196 (3d Cir.), cert. denied, 115 S. Ct. 590 (1994).
102. E.g., Rutherford v. American Bank of Commerce, 565 F.2d 1162, 1164 (10th Cir. 1977); EEOC v. Metzger, 824 F. Supp. 1, 2 (D.D.C. 1993).
103. E.g., Pantchenko, 581 F.2d at 1054.
104. See supra note 81 and accompanying text. "The effective enforcement of Title VII . . . depends in very large part on the initiative of individuals to oppose employment policies or practices . . . ." 2 EEOC Compl. Man. (BNA) § 614.1(f)(2), at 614:0007.
105. See supra notes 82-86 and accompanying text.
106. Charlton, 25 F.3d at 200.
107. Robinson v. Shell Oil Co., No. 93-1562, 1995 WL 25831, at *2 (4th Cir. Jan. 18, 1995), vacated and reh'g granted en banc, on reh'g, 70 F.3d 325 (4th Cir. 1995), cert. granted, No. 95-1376, 1996 WL 97912 (U.S. Apr. 22, 1996). It is important to keep in mind that the claims chilled are those challenging discriminatory practices prohibited under § 703 of Title VII. Only after the plaintiff has opposed an employer's discriminatory practices under Title VII will she be entitled to § 704(a)'s retaliatory protection.
108. 2 EEOC Compl. Man. (BNA) § 614.7(f), at 614:0034 ("[A]n . . . employer's obligation to refrain from retaliation against a former employee . . . does not end once that employee leaves its employ."). The EEOC's interpretations are entitled to great deference. Griggs v. Duke Power Co., 401 U.S. 424, 433-34 (1971).
109. See 2 EEOC Compl. Man. (BNA) § 614.1(f), at 614:0006 (stating that § 704(a) guarantees that individual's right to be free from discrimination is not "without substance").
110. See id. § 614.1(f)(2), at 614:0007.
111. 70 F.3d 325 (4th Cir. 1995) (en banc), cert. granted, No. 95-1376, 1996 WL 97912 (U.S. Apr. 22, 1996).
112. Id. at 330.
113. Id.
114. Crandon v. United States, 494 U.S. 152, 158 (1990).
115. Robinson, 70 F.3d at 333 (en banc) (Hall, J., dissenting).
116. See, e.g., United States v. Brown, 333 U.S. 18, 27 (1948) ("No rule of construction necessitates our acceptance of an interpretation resulting in patently absurd consequences."); Crooks v. Harrelson, 282 U.S. 55, 60 (1930) (adding requirement that "there must be something to make plain [Congress's intent] that the letter of the statute is not to prevail").
117. The majority in the Fourth Circuit en banc decision of Robinson found that the absurdity exception did not apply. The court concluded that the absurdity exception did not apply because the absurdity was not "'so gross as to shock the general moral or common sense,'" Robinson, 70 F.3d at 329 (en banc) (citing Crooks, 282 U.S. at 60), and because there was nothing in the statute to convey that Congress intended "that the letter of the statute is not to prevail." Id. (citing Crooks, 282 U.S. at 60). Supporting this decision, the Fourth Circuit stated that the lack of reference to former employees "was strong evidence that Congress did not intend Title VII to protect former employees." Id. at 330. But see id. at 333 (Hall, J., dissenting) (arguing that grossly absurd results would follow from literal application of statute).
118. Dunlop v. Carriage Carpet Co., 548 F.2d 139, 147 (6th Cir. 1977) (interpreting antiretaliation provision of Fair Labor Standards Act (FLSA) to include former employees). Courts routinely look to the FLSA, the National Labor Relations Act (NLRA), the Age Discrimination in Employment Act (ADEA), and Title VII when interpreting analogous sections of these statutes. See, e.g., McKennon v. Nashville Banner Publishing Co., 115 S. Ct. 879, 884 (1995) (stating that ADEA, Title VII, and FLSA are all part of statutory scheme to eradicate workplace discrimination and noting that rule barring after-acquired evidence does not accord with such scheme); Lorillard v. Pons, 434 U.S. 575, 582 (1978) (determining that ADEA incorporated most remedies and procedures of FLSA); Rutherford v. American Bank of Commerce, 565 F.2d 1162, 1165-66 (10th Cir. 1977) (drawing support from interpretation of FLSA's antiretaliation provision in Dunlop to find that Title VII protects former employees against retaliation); Pettway v. American Cast Iron Pipe Co., 411 F.2d 998, 1005-06 (5th Cir. 1969) (relying "guarded[ly]" on NLRA and FLSA to interpret § 704(a)).
119. Charlton v. Paramus Bd. of Educ., 25 F.3d 194, 200 (3d Cir.), cert. denied, 115 S. Ct. 590 (1994).
120. Robinson v. Shell Oil Co., No. 93-1562, 1995 WL 25831, at *2 (4th Cir. Jan 18, 1995), vacated and reh'g granted en banc, on reh'g, 70 F.3d 325 (4th Cir. 1995), cert. granted, No. 95-1376, 1996 WL 97912 (U.S. Apr. 22, 1996).
121. See Robinson, 70 F.3d at 332-33 (en banc) (Hall, J., dissenting) (offering example where employer's behavior toward two employees is equally culpable but, due to chance, only one employee may state Title VII antiretaliation claim).
122. H.R. Rep. No. 40, supra note 81, pt. 1, at 14, reprinted in 1991 U.S.C.C.A.N. at 552.
123. H.R. Rep. No. 40, supra note 81, pt. 2, at 1, reprinted in 1991 U.S.C.C.A.N. at 694.
124. See Sherman v. Burke Contracting, Inc., 891 F.2d 1527, 1536 (11th Cir.) (Tjoflat, C.J., concurring) (arguing that antiretaliation provision of Title VII was not intended to allow monetary damages), cert. denied, 498 U.S. 943 (1990).
125. Id. (Tjoflat, C.J., concurring) (citing Alexander v. Gardner-Denver Co., 415 U.S. 36, 44 (1974)).
126. Id. at 1537 (Tjoflat, C.J., concurring) (discussing 42 U.S.C. § 2000e-5(g), which permits court to enjoin employer and order reinstatement or hiring of employee with backpay and other equitable relief as court deems appropriate). Equitable remedies usually take the form of reinstatement and backpay.
127. Civil Rights Act of 1964 § 706(g)(1), 42 U.S.C. § 2000e-5(g)(1) (1994).
128. Civil Rights Act of 1991 § 102, 42 U.S.C. § 1981(a)(1).
129. Id. Compensatory and punitive damages are not permitted in cases alleging unlawful discrimination based on disparate impact. Id.
130. Id. § 1981(b)(3).
131. Id. § 1981(b)(1).
132. Id. § 1981(a)(1). Section 1981(a)(1) allows compensatory and punitive damages for intentional discrimination suits brought under §§ 706 or 717 for violations of §§ 703, 704, or 717 of Title VII. Id.
133. H.R. Rep. No. 40, supra note 81, pt. 1, at 14, 65, 70, reprinted in 1991 U.S.C.C.A.N. at 552, 603, 608.
134. H.R. Rep. No. 40, supra note 81, pt. 1, at 65, reprinted in 1991 U.S.C.C.A.N. at 603.
135. For example, one impetus for the Civil Rights Act of 1991 was a desire to overrule a number of Supreme Court cases with which Congress disagreed. See H.R. Rep. No. 40, supra note 81, pt. 2, at 2, reprinted in 1991 U.S.C.C.A.N. at 695. Congress's disapproval of the Supreme Court's new burden of proof standard established in Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989), provides an example of Congress specifically enacting legislation to overrule a judicial decision with which it disagreed. Wards Cove construed Title VII to place on employees the burden of proving that employment practices with a "disparate impact" were not significantly related to a legitimate business objective. Id. at 659-60. In the Civil Rights Act of 1991, Congress expressly overruled Wards Cove and shifted the burden to the employer to prove that employment practices with a "disparate impact" were in fact required by business necessity. H.R. Rep. No. 40, supra note 81, pt. 2, at 2, reprinted in 1991 U.S.C.C.A.N. at 695. Similarly, Congress disagreed with the Court's decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), which ruled that an employment decision motivated in part by prejudice does not violate Title VII if the employer can show after the fact that the same decision would have been made for nondiscriminatory reasons. Id. at 242. The Civil Rights Act of 1991 overruled Price Waterhouse and reaffirmed that any reliance on prejudice in making employment decisions is illegal. H.R. Rep. No. 40, supra note 81, pt. 2, at 2, reprinted in 1991 U.S.C.C.A.N. at 695.
136. H.R. Rep. No. 40, supra note 81, pt. 1, at 1, reprinted in 1991 U.S.C.C.A.N. at 549.
137. Id.
138. Statement on Signing the Civil Rights Act of 1991, 27 Weekly Comp. Pres. Doc. 1701 (Nov. 21, 1991) (Statement of President George Bush).
139. 939 F.2d 484 (7th Cir. 1991).
140. See supra text accompanying notes 37-41.
141. See supra notes 42-44 and accompanying text.
142. See supra text accompanying notes 43-45. In Reed v. Shepard, 939 F.2d 484 (7th Cir. 1991), the plaintiff claimed that she had been retaliated against by her former employer who caused a physical attack to be made on her. Id. at 492. The Seventh Circuit held that § 704(a) did not apply since the events occurred after termination of her employment. The court held that the plaintiff should seek state-law damage claims and a criminal charge instead. Id. at 493. Similarly, in Pelech v. Klaff-Joss, 828 F. Supp. 525 (N.D. Ill. 1993), an Illinois district court followed Reed and suggested that plaintiffs seek redress for postemployment acts by availing "themselves of other equitable and legal remedies, such as state law damage claims, injunctions, or, . . . criminal charges." Id. at 533. In Polsby v. Chase, 970 F.2d 1360, 1365 (4th Cir. 1992), vacated on other grounds, 113 S. Ct. 1940 (1993), the court suggested that the former employee use Title VII against prospective employers or seek either state or other federal-law remedies against the former employer. Id. at 1366. Chief Judge Tjoflat, concurring in Sherman v. Burke Contracting, Inc., 891 F.2d 1527 (11th Cir.), cert. denied, 498 U.S. 943 (1990), suggested that an employee seek state common-law damages. Id. at 1541 (Tjoflat, C.J., concurring).
143. Civil Rights Act of 1964 § 704(a), 42 U.S.C. § 2000e-3(a) (stating in relevant part that "[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment").
144. In contrast, a prospective employer would violate 42 U.S.C. § 2000e-3(a) if she failed to hire an individual solely because the applicant filed a Title VII charge against a former employer.
145. For example, employers could discriminate by refusing to give references to employees who filed Title VII claims, while giving references to those who do not oppose discriminatory practices. This would shield the employer from a defamation suit, while still injuring the employee in her pursuit of other employment. Or, the employer could deny the former employee access to the employer's premises. In Baker v. Summit Unlimited, Inc., the employer, a child care center, denied the former employee access to the center to pick up children as a parent designee. Baker v. Summit Unlimited, Inc., 855 F. Supp. 375, 377 (N.D. Ga. 1994).
146. See supra notes 45-51 and accompanying text.
147. See supra notes 47-48 and accompanying text.
148. See, e.g., Shore v. Federal Express Corp., 42 F.3d 373, 378 (6th Cir. 1994) (stating that courts need to be flexible in calculating front pay); Goss v. Exxon Office Sys. Co., 747 F.2d 885, 890 (3d Cir. 1984) (stating that front pay is an alternative to reinstatement); see also Maxfield v. Sinclair Int'l, 766 F.2d 788, 796 (3d Cir. 1985) (involving Age Discrimination in Employment Act (ADEA) violation where reinstatement was not possible and stating that "an award for future lost earnings is no more speculative than awards for lost earning capability routinely made in personal injury and other types of cases"), cert. denied, 474 U.S. 1057 (1986). Courts also have provided ADEA plaintiffs with front pay. See, e.g., Duke v. Uniroyal Inc., 928 F.2d 1413, 1423 (4th Cir.) (allowing trial court to consider front-pay award on remand), cert. denied, 502 U.S. 963 (1991); Hansard v. Pepsi-Cola Metro Bottling Co., 865 F.2d 1461, 1469 (5th Cir.), cert. denied, 493 U.S. 842 (1989) (noting that front pay is available for ADEA claims "in limited circumstances").
149. Even where future pay cannot be ascertained reliably, the plaintiff may be entitled to injunctive relief. See Civil Rights Act of 1964 § 706(g)(1), 42 U.S.C. § 2000e-5(g)(1).
150. See, e.g., Suggs v. Servicemaster Educ. Food Management, 72 F.3d 1228, 1234 (6th Cir. 1996) (stating that following factors are relevant in calculating front pay: "(1) the employee's future in the position from which she was terminated; (2) her work and life expectancy; (3) her obligation to mitigate her damages; (4) the availability of comparable employment opportunities and the time reasonably required to find substitute employment; (5) the discount tables to determine the present value of future damages; and (6) 'other factors that are pertinent in prospective damage awards'" (citations omitted)); Scarfo
151. Civil Rights Act of 1964 § 706(g)(1), 42 U.S.C. § 2000e-5(g)(1).
152. See supra notes 49-51 and accompanying text.
153. See supra note 51 for the example Judge Hamilton provides in his dissent of Robinson v. Shell Oil Co., No. 93-1562, 1995 WL 25831 (4th Cir. Jan 18, 1995), vacated and reh'g granted en banc, on reh'g, 70 F.3d 325 (4th Cir. 1995), cert. granted, No. 95-1376, 1996 WL 97912 (U.S. Apr. 22, 1996).
154. Under the discovery rule, the cause of action does not accrue until the date of the discovery of the prohibited conduct, or the date when, by the exercise of reasonable care and diligence, it would have been discovered. Black's Law Dictionary 466 (6th ed. 1990). The use of the discovery rule should turn on standards of reasonableness, considerations of the prejudice to the defendant, and potential injustice to the plaintiff. See Robinson, 1995 WL 25831, at *3 (expressing confidence in ability of judiciary to distinguish between just and unjust applications of doctrine); Antos v. Bell & Howell Co., 891 F. Supp. 1281, 1287 (N.D. Ill. 1995) (discussing discovery rule and doctrine of equitable tolling and noting court should be guided by standards of "reasonableness"); Slack v. Kanawha County Hous. & Redev. Auth., 423 S.E.2d 547, 552 (W. Va. 1992) (adopting discovery rule for tort of invasion of privacy and noting its purpose "to remedy the unjust and unreasonable effects of strict application of the statute of limitations").
155. See, e.g., Fields v. Phillips Sch. of Business and Technology, 870 F. Supp. 149, 153 (W.D. Tex. 1994) (finding insufficient evidence that employer's reference, which stated that employee was "below average" and was fired because of tardiness and insubordination, was motivated by malice or retaliation); Bahu v. Fuller O'Brien Paints, No. S85-508, 1986 WL 12048, at *8 (N.D. Ind. July 25, 1986) (finding that employer's reference, which stated that former employee was well qualified but did not accept criticism well, was not retaliation but honest appraisal).
156. Martin K. Denis, Title VII Retaliation Claims, 9 Employee Rel. L.J. 642, 651 (1984).
157. Id.
158. EEOC v. Levi Strauss & Co., 515 F. Supp. 640, 644 (N.D. Ill. 1981) (holding that federal court can enjoin defamation suit brought by employer only when suit is brought in bad faith and for improper purposes such as retaliation); see also Baker v. Summit Unlimited, Inc., 855 F. Supp. 375, 377 (N.D. Ga. 1994) (holding that [§] 704(a) was not violated when employer opposed former employee's claim for unemployment benefits because it was not retaliatory in nature).
159. Ramona L. Paetzold & Steven L. Willborn, Employer (Ir)Rationality and the Demise of Employment References, 30 Am. Bus. L.J. 123, 124 (1992).
160. Between 50-100% of all employers check references to screen job applicants. Id. at 125.
161. Id. at 126.
162. See id.
163. An employer is liable to an employee for defamation if the employer publishes a false statement about the employee that harms the employee's reputation and that is not privileged. Id. at 128.
164. Beckham v. Grand Affair, Inc., 671 F. Supp. 415, 417 (W.D.N.C. 1987).
165. Reed v. Shepard, 939 F.2d 484, 492 (7th Cir. 1991).
166. Id.
167. Berry v. Stevinson Chevrolet, 804 F. Supp. 121, 134 (D. Colo. 1992), aff'd in part, rev'd in part on other grounds, 74 F.3d 980 (10th Cir. 1996).
168. EEOC v. Virginia Carolina Veneer Corp., 495 F. Supp. 775, 777 (W.D. Va. 1980).
169. Patricia A. Moore, Note, Parting Is Such Sweet Sorrow: The Application of Title VII to Post-Employment Retaliation, 62 Fordham L. Rev. 205, 219 (1993) ("[I]n order to balance congressional objectives in the enactment of the statute against the potential for statutory abuse in the post-employment context, section 704(a) should protect former employees only when the post-employment actions are both retaliatory and related to employment.").
170. Id. at 221; see also Samuel Estreicher & Michael C. Harper, Cases and Materials on the Law Governing the Employment Relationship 42 (2d Supp. 1995) (raising question of whether § 704(a) reaches postemployment retaliation and if answer should depend on whether adverse actions implicate employment conditions).
171. But see Berry, 804 F. Supp. at 136 (expressly stating that § 704(a) applies to retaliation that does not interfere with employment); Beckham v. Grand Affair, Inc., 671 F. Supp. 415, 419 (W.D.N.C. 1987) (applying § 704(a) to retaliation that harmed former employee personally). Beckham was impliedly overruled by Polsby v. Chase, 970 F.2d 1360, 1365 (4th Cir. 1992), vacated on other grounds, 113 S. Ct. 1940 (1993).
172. Berry, 804 F. Supp. at 136. The court held that an employer's forgery suit constituted retaliation under § 704(a).
173. Robinson v. Shell Oil Co., No. 93-1562, 1995 WL 25831, at *2 (4th Cir. Jan. 18, 1995) (stating that § 704(a) exists when the retaliation either "arose from the employment relationship or was related to the employment"), vacated and reh'g granted en banc, on reh'g, 70 F.3d 325 (4th Cir. 1995), cert. granted, No. 95-1376, 1996 WL 97912 (U.S. Apr. 22, 1996); Charlton v. Paramus Bd. of Educ., 25 F.3d 194, 200 (3d Cir.) (same), cert. denied, 115 S. Ct. 590 (1994); Pantchenko v. C.B. Dolge Co., 581 F.2d 1052, 1055 (2d Cir. 1978) (same).
174. Pantchenko, 581 F.2d at 1054; see also Robinson, 1995 WL 25831, at *2; Charlton, 25 F.3d at 200.
175. This can be safely assumed since no case has objected to the "related to employment" test, and no case has offered a different test.
176. Robinson, 1995 WL 25831, at *2.
177. 935 F.2d 322 (D.C. Cir. 1991).
178. Id. at 324-25. The ADEA has a provision similar to Title VII's antiretaliation provision. Courts frequently rely on Title VII when interpreting the ADEA. See id. at 330.
179. The court in Passer, however, did accept that the retaliation affected future employment opportunities. Id. at 331. The court held that the ADEA's antiretaliation provision covered the cancellation of the symposium, reasoning that the "cancellation of the seminar humiliated [Passer] before the assemblage of his professional associates and peers . . . and made it more difficult for him to procure future employment." Id. However, similar situations that would not affect future employment could easily be envisioned.
180. 804 F. Supp. 121, 134 (D. Colo. 1992) (former employer reported possible forgery and theft to sheriff's office in retaliation for employee filing discrimination claim), aff'd in part, rev'd in part on other grounds, 74 F.3d 980 (10th Cir. 1996).
181. 495 F. Supp. 775, 776-77 (W.D. Va. 1980) (former employer filed defamation suit against former employee in retaliation for employee filing sex-discrimination charge).