Fighting discrimination while fighting litigation: A tale of two supreme courts

Fordham Law Review

Volumn 76, Issue 2, 2007, Pages 981-1013

  Moss, Scott A ^a  

^a UNIVERSITY OF COLORADO   (United States)

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EID: 38049156398     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (139)

1. Andrew M. Siegel, The Court Against the Courts: Hostility to Litigation as an Organizing Theme in the Rehnquist Court's Jurisprudence, 84 Tex. L. Rev. 1097, 1110-11 (2006).
2. See Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998).
3. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 107 (2002).
4. Garcetti v. Ceballos, 126 S. Ct. 1951 (2006).
5. Ledbetter v. Goodyear Tire & Rubber Co., Inc., 127 S. Ct. 2162 (2007).
6. The past decade has seen four 9-0 decisions relaxing plaintiffs' burden of proof in the context of employment claims. See Burlington N. & Santa Fe Ry. Co. v. White, 126 S. Ct. 2405, 2409-10 (2006) (rejecting circuit holdings that a retaliatory act is actionable only if a "materially adverse" or "ultimate" change to employment conditions, and instead holding actionable any retaliatory act that would deter a reasonable employee); Ash v. Tyson Foods, Inc., 546 U.S. 454, 456-57 (2006) (holding, contrary to the lower court, that the following are probative of discrimination: (1) a possibly ambiguously racist term (calling an African-American "boy"), and (2) evidence that plaintiff was more qualified than other candidates even where the difference is not "so apparent as virtually to jump off the page and slap you in the face" - several circuits' standard (quoting Cooper v. S. Co., 390 F.3d 695, 732 (11th Cir. 2004))); Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003) (reversing circuit holdings that only plaintiffs with "direct" (not circumstantial) evidence can exploit the rule that plaintiffs need prove only that discrimination was one "motivating factor" of an employer's decision); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000) (rejecting pretext-plus rule of circuits holding that disproving defendant's proffered reason for a firing is insufficient evidence of discrimination).
7. Barbara K. Bucholtz, Father Knows Best: The Court's Result-Oriented Activism Continues Apace: Selected Business-Related Decisions from the 2002-2003 Term, 39 Tulsa L. Rev. 75, 90-91 (2003) ("[P]ro-employee result[s] illustrate[] the Rehnquist Court's sensitivity to Title VII cases and, in particular, . . . discrimination against women. . . . [W]hile conservative federal courts . . . [have] interpreted the anti-discrimination statutes narrowly, the Supreme Court has taken a nuanced approach that clearly favors the longstanding and more widely accepted anti-discrimination rules and the protected classes of Title VII over . . . other anti-discrimination statutes.").
8. See, e.g., Anita Silvers, Michael E. Waterstone & Michael Ashley Stein, Disability and Employment Discrimination at the Rehnquist Court, 75 Miss. L.J. 945, 946 (2006) (noting "[the] Court's general pattern of favoring plaintiffs in race and sex . . . discrimination cases, while being decidedly pro-defendant in . . . disability-related claims"); see also Bucholtz, supra note 7.
9. Ramona L. Paetzold, Supreme Court's 2005-2006 Term Employment Law Cases: Do New Justices Imply New Directions?, 10 Emp. Rts. & Emp. Pol'y J. 303, 348-49 (2006).
10. E.g., Desert Palace, Inc., 539 U.S. at 98 (2003) (Thomas, J.) ("[T]he starting point for our analysis is the statutory text. . . . [Where] . . . the words of the statute are unambiguous, the "judicial inquiry is complete."" (quoting Rubin v. United States, 449 U.S. 424, 430 (1981))); Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998) (Scalia, J.) ("[M]ale-on-male sexual harassment . . . was assuredly not the principal evil Congress was concerned with . . . . But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.").
11. Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to Be Construed, 3 Vand. L. Rev. 395, 401 (1950); see infra Part II.A.1.
12. Cass R. Sunstein, Beyond Marbury: The Executive's Power to Say What the Law Is, 115 Yale L.J. 2580, 2592-93 (2006); see, e.g., Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997) (Thomas & Scalia, JJ.) (holding that where a retaliation statute's protection of "employees" was "ambiguous as to whether it includes former employees," the statute must be deemed to include them for "consistency with a primary purpose of antiretaliation provisions: . . . access to statutory remedial mechanisms. . . . [I]t would be destructive of this purpose . . . for an employer to be able to retaliate with impunity[,] . . . [which] support[s] the inclusive interpretation . . .").
13. See Siegel, supra note 1, at 1139-43.
14. Oliver Wendell Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 458 (1897),
15. reprinted in 110 Harv. L. Rev. 991, 992 (1997) ("[A] legal duty . . . is nothing but a prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of the court[,] and so of a legal right . . . .").
16. Filing an administrative charge of discrimination with the Equal Employment Opportunity Commission (EEOC) is a prerequisite to a Title VII charge of discrimination, 42 U.S.C. § 2000e-5(e)(1) (2000), so when this Article refers to employees "filing suit" within the limitations period, it should be understood to mean commencing the process with the required EEOC charge.
17. 524 U.S. 775 (1998).
18. 524 U.S. 742 (1998).
19. Faragher, 524 U.S. at 807.
20. See, e.g., Harrison v. Eddy Potash, Inc., 158 F.3d 1371 (10th Cir. 1998) (reversing judgment for defendant because plaintiff had not been made aware of defendant's official harassment policy); Hollis v. City of Buffalo, 28 F. Supp. 2d 812 (W.D.N.Y. 1998) (finding for plaintiff where defendant had no harassment policy, made no real response to plaintiff's complaint, and did not mandate harassment training); Brandrup v. Starkey, 30 F. Supp. 2d 1279, 1289 (D. Or. 1998) (denying defendant summary judgment where plaintiff was not made aware of defendant's harassment policy, and defendant's human resources officer's response to the complaint "contravene[d] the spirit, if not the terms" of the policy by telling plaintiff to complain to her supervisor, the harasser); Nuri v. PRC, Inc., 13 F. Supp. 2d 1296 (M.D. Ala. 1998) (denying defendant judgment as a matter of law, despite defendant's comprehensive, vigorously enforced harassment policy, because the distribution of the policy was incomplete and did not elaborate the policy sufficiently).
21. See, e.g., Fall v. Ind. Univ. Bd. of Trs., 12 F. Supp. 2d 870, 883 (N.D. Ind. 1998) ("[T]hat the University had both actual and constructive notice of Cohen's history of sexual harassment means that summary judgment must be denied [under] Burlington and Faragher . . . .").
22. See, e.g., Wyatt v. Hunt Plywood Co., 297 F.3d 405, 413 (5th Cir. 2002) (affirming partial summary judgment, holding that an employer satisfied its duty even though plaintiff complained to an official who "was not only ineffective in dealing with Thompson's harassment, but . . . himself was a sexual harasser. . . . [Her] failure to report . . . [to] other individuals listed in the sexual harassment policy was unreasonable"); Matvia v. Bald Head Island Mgmt., Inc., 259 F.3d 261, 268 (4th Cir. 2001) (affirming summary judgment, holding that an employer satisfied its duty with a written policy discussed at orientation, despite "evidence . . . [that] employees had trouble recalling the details . . . [and] did not understand [it]"); Barrett v. Applied Radiant Energy Corp., 240 F.3d 262, 266 (4th Cir. 2001) (rejecting, in defense of the district court's grant of judgment as a matter of law, the argument "that because ARECO never did anything more than distribute its anti-harassment policy, it did not exercise reasonable care . . . . Distribution of an anti-harassment policy provides 'compelling proof' that the company exercised reasonable care . . . . The only way to rebut . . . is to show that the 'employer adopted or administered an anti-harassment policy in bad faith or that the policy was otherwise defective or dysfunctional.'" (citations omitted)); Leopold v. Baccarat, Inc., 239 F.3d 243, 245 (2d Cir. 2001) (affirming summary judgment and rejecting the argument that the "policy fails to guarantee confidentiality and non-retaliation," because such features are not "mandatory."); Shaw v. Autozone, Inc., 180 F.3d 806, 812 (7th Cir. 1999) (affirming summary judgment and holding that an employer satisfied its duty since "the policy did not succeed in this case, but the law does not require success - it only requires that an employer act reasonably to prevent sexual harassment").
23. Barrett, 240 F.3d at 267-68 ("Barrett's first explanation . . . [is] that she feared . . . she could not report Ramsey's behavior to . . . Zeigler, because Zeigler and Ramsey were good friends[,] . . . [and] could not report Ramsey to any . . . managers because they all reported to Zeigler. . . . [F]ail[ing] to utilize the company's complaint procedure 'will normally suffice' . . . . We cannot accept . . . that reporting sexual harassment is rendered futile merely because members of the management team happen to be friends. Crediting this view would impose an impermissible burden on any company . . . ."); Leopold, 239 F.3d at 246 (affirming summary judgment: "Leopold asserts that she and her fellow employees did not complain about their supervisor's behavior because 'we were too scared.' . . . A credible fear must be based on more than the employee's subjective belief. Evidence must be produced . . . that the employer has ignored or resisted similar complaints or has taken adverse actions against employees in response . . .").
24. See, e.g., Walton v. Johnson & Johnson Servs., Inc., 347 F.3d 1272, 1290-91 (11th Cir. 2003) (affirming a grant of summary judgment to defendant, holding that an employee failed her duty to complain until three months after harassment started, despite the employee's arguments about fear of retaliation: "[A]bsent a credible threat of retaliation, Walton's subjective fears of reprisal[,] . . . standing alone, do not excuse [her] failure to report a supervisor's harassment"); Matvia, 259 F.3d at 270 (affirming a grant of summary judgment to defendant, holding that an employee failed her duty by not complaining until a particularly bad incident roughly three months after the harassment started).
25. Burlington Indus. v. Ellerth, 524 U.S. 742, 764 (1998) (citations omitted); see also Faragher v. City of Boca Raton, 524 U.S. 775, 806 (1998) ("It would . . . implement clear statutory policy and complement the Government's Title VII enforcement efforts to recognize the employer's affirmative obligation to prevent violations and give credit here to employers who make reasonable efforts to discharge their duty.").
26. The Court has stated, In a State that has an entity with the authority to grant or seek relief with respect to the alleged unlawful practice, an employee who initially files a grievance with that agency must file the charge with the EEOC within 300 days of the employment practice; in all other States, the charge must be filed within 180 days. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002).
27. Id. at 117-18.
28. Id.
29. Morgan left open, but did not address, the possibility that the continuing violations doctrine might apply more broadly in class action claims. Id. at 115 n.9.
30. Id. at 108.
31. Id. at 108 (quoting Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980) (internal quotation marks omitted)).
32. Id. at 109 ("'[B]y choosing what are obviously quite short deadlines, Congress clearly intended to encourage the prompt processing of all charges of employment discrimination.'" (quoting Mohasco Corp., 447 U.S. at 825)).
33. Michael J. Zimmer et al., Cases and Materials on Employment Discrimination 854 (6th ed. 2003).
34. E.g., Schwapp v. Town of Avon, 118 F.3d 106, 112 (2d Cir. 1997) (denying defendant summary judgment: "Schwapp has recounted ten racially-hostile incidents . . . during his 20-month tenure . . . . He also has recounted two other incidents . . . [of] bigotry . . . toward other minority groups. Most importantly, LeMay, Schwapp's supervisor, advised Schwapp that . . . 'at one time all the crimes in Avon were committed by blacks,' and . . . Schwapp had to accept the fact that he was working with racists and not be 'so sensitive'").
35. Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162 (2007).
36. Forsyth v. Fed'n Emp. & Guidance Serv., 409 F.3d 565, 573 (2d Cir. 2005) ("A salary structure that was discriminating before the statute of limitations passed is not cured of that illegality after that time passed, and can form the basis of a suit if a paycheck resulting from such a discriminatory pay scale is delivered during the statutory period."); accord Wedow v. City of Kansas City, 442 F.3d 661, 671 (8th Cir. 2006) (describing that, as held in Bazemore v. Friday, 478 U.S. 385, 395 (1986), "each week's paycheck that delivers less on a discriminatory basis is a separate Title VII violation"); Shea v. Rice, 409 F.3d 448, 455 (D.C. Cir. 2005) (holding same: "Shea's allegation is . . . [that a] discriminatory system, by its 'continued application,' 'currently treats similarly situated employees differently'" (citations omitted)); Goodwin v. Gen. Motors Corp., 275 F.3d 1005, 1010 (10th Cir. 2002) ("[E]ach race-based discriminatory salary payment constitutes a fresh violation of Title VII."). Numerous other circuits had gone further, holding pay discrimination to be a "continuing violation." See Brief for the Petitioner, Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162 (2007) (No. 05-1074), 29 n.16, 31 n.17 (collecting cases). But even before Ledbetter, Morgan seemed to abrogate those cases allowing plaintiffs to challenge an entire pay disparity as a "continuing violation."
37. Bazemore, 478 U.S. 385.
38. Id. at 395-96 (reversing ruling "that the pre-Act discriminatory difference in salaries did not have to be eliminated" because "[e]ach week's paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII, regardless of the fact that this pattern was begun prior to [Title VII's] effective date").
39. Ledbetter, 127 S. Ct. at 2173.
40. Id. at 2170 (citations omitted).
41. Id. at 2170-71 (citations omitted).
42. Id. at 2171.
43. "[T]he time for filing with the EEOC is not tolled during the pendency of a grievance proceeding." Zimmer at al., supra note 32, at 855 (collecting and discussing cases).
44. Connick v. Myers, 461 U.S. 138 (1983); Pickering v. Bd. of Educ., 391 U.S. 563 (1968).
45. Garcetti v. Ceballos, 126 S. Ct. 1951 (2006).
46. Id. at 1960.
47. Id. at 1954 ("Ceballos wrote his disposition memo because that is part of what he was employed to do. He did not act as a citizen by writing it.").
48. Id. at 1958.
49. Id. at 1958, 1960.
50. Id. at 1961.
51. Id. at 1963 (Stevens, J., dissenting).
52. Givhan v. W. Line Consol. School Dist., 439 U.S. 410, 414 & n.3 (1979).
53. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 844 (1992) (Kennedy, O'Connor & Souter, JJ.).
54. Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162, 2171 (2007).
55. Henry E. Smith, Modularity in Contracts: Boilerplate and Information Flow, 104 Mich. L. Rev. 1175, 1220 (2006)
56. (quoting Frederic William Maitland, A Prologue to a History of English Law, 53 L. Q. Rev. 13, 13 (1898) ("Such is the unity of all history that any one who endeavours to tell a piece of it must feel that his first sentence tears a seamless web.")).
57. Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to Be Construed, 3 Vand. L. Rev. 395, 401 (1950).
58. Id. at 401.
59. Id. at 401 (citing cases and treatises on each canon).
60. Id. at 405 (citing cases and treatises on each canon).
61. Id. at 401 (emphasis omitted).
62. See, e.g., John F. Manning, Legal Realism & the Canons' Revival, 5 Green Bag 2d 283, 284 (2002) (noting that "[m]odern textualists, who tend to be formalist in orientation, understandably favor the use of canons, particularly the traditional linguistic canons");
63. Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 Harv. L. Rev. 405, 452 (1989) ("[Llewellyn's] claim of indeterminacy and mutual contradiction was greatly overstated . . . . The canons of construction continue to be a prominent feature in the federal and state courts.").
64. Manning, supra note 60, at 283.
65. Jack M. Beermann, A Critical Approach to Section 1983 with Special Attention to Sources of Law, 42 Stan. L. Rev. 51, 53 (1989) (noting "[t]he indeterminacy of legalistic analysis of [42 U.S.C.] § 1983 . . . policy arguments . . . are more like incantations of magic formulae than descriptions of consequences in the real world");
66. Anthony D'Amato, Judicial Legislation, 1 Cardozo L. Rev. 63, 91 (1979) ("[W]hen one side asserts that a decision in its favor would be more socially desirable, may not the other side similarly raise its own claim of rights to . . . social policy?");
67. Duncan Kennedy, Freedom and Constraint in Adjudication: A Critical Phenomenology, 36 J. Legal Educ. 518, 534 (1986).
68. See, e.g., Kent Greenawalt, How Law Can Be Determinate, 38 UCLA L. Rev. 1, 29-30 (1990) ("Few, if any, writers have asserted the most extreme thesis about indeterminacy - that no legal questions have determinate answers - in clear terms, and almost no one may actually believe that thesis, but establishing why that thesis is absurd is helpful. . . . [T]he law often has determinate answers to possible legal questions.");
69. Lawrence B. Solum, On the Indeterminacy Crisis: Critiquing Critical Dogma, 54 U. Chi. L. Rev. 462, 494-95 (1987) ("[I]t is pure nonsense to say that legal doctrine is completely indeterminate even with respect to very hard cases. Even in the hardest hard case, legal doctrine limits the court's options.").
70. Ann C. Hodges, Mediation and the Transformation of American Labor Unions, 69 Mo. L. Rev. 365, 369 & n.27 (2004) (noting that "[e]mployment and labor litigation has ballooned to a significant percentage of the federal court docket" - roughly 12 to 14 percent of all federal litigation - "and has also substantially increased in many state courts").
71. See, e.g., Lawrence v. Texas, 539 U.S. 558, 577 (2003) ("The doctrine of stare decisis is essential to the respect accorded to the judgments of the Court and to the stability of the law. It is not, however, an inexorable command.").
72. Caleb Nelson, Stare Decisis and Demonstrably Erroneous Precedents, 87 Va. L. Rev. 1, 8 (2001).
73. Mark V. Tushnet, Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles, 96 Harv. L. Rev. 781, 818 (1983);
74. see also Girardeau A. Spann, Deconstructing the Legislative Veto, 68 Minn. L. Rev. 473, 529 (1984) ("All subsequent cases are subject to characterization as cases of first impression . . . .").
75. Id. at 819.
76. Scott A. Moss, Where There's At-Will, There Are Many Ways: Redressing the Increasing Incoherence of Employment at Will, 67 U. Pitt. L. Rev. 295, 328-41 (2005).
77. 410 U.S. 113 (1973).
78. 505 U.S. 833 (1992).
79. 478 U.S. 186 (1986).
80. 539 U.S. 558 (2003).
81. 505 U.S. at 854-69.
82. Lawrence, 539 U.S. at 587 (Scalia, J., dissenting). Today's opinions in support of [Bowers's] reversal do not bother to distinguish . . . the paean to stare decisis coauthored by three Members of today's majority in Planned Parenthood v. Casey. There, when stare decisis meant preservation of judicially invented abortion rights, the widespread criticism of Roe was strong reason to reaffirm it: . . . "[T]o overrule under fire . . . would subvert the Court's legitimacy . . . ." Today, however, the widespread opposition to Bowers, a decision resolving an issue as "intensely divisive" as the issue in Roe, is offered as a reason in favor of overruling it. Id. (citation omitted).
83. 127 S. Ct. 1610 (2007).
84. 530 U.S. 914 (2000).
85. Gonzales, 127 S. Ct. at 1641, 1646 (Ginsburg, J., dissenting).
86. Posting of Michael Stokes Paulsen to Balkanization, http://balkin. blogspot.com/2007/04/pernicious-doctrine-of-stare-decisis.html (Apr. 18, 2007, 13:27).
87. 505 U.S. 833 (1992).
88. Id. at 854-69.
89. For example, Justice Potter Stewart dissented from the declaration of a right to privacy in Griswold v. Connecticut, 381 U.S. 479, 527 (1965), but then joined the majority in Roe v. Wade, 410 U.S. 113, 168 (1973), declaring that he "now accept[s]" Griswold, the basis of Roe's protection of a woman's right to have an abortion, Roe, 410 U.S. at 168 (Stewart, J., concurring) ("[T]he Griswold decision can be rationally understood only as a holding that the Connecticut statute substantively invaded the 'liberty' that is protected by the Due Process Clause of the Fourteenth Amendment . . . , and I now accept it as such."). Similarly, Justice John Paul Stevens categorically stated that it was on stare decisis grounds that he voted to uphold a precedent he would have voted against as an original matter: Jones v. Alfred H. Mayer Co. . . . unequivocally held that § 1 of the Civil Rights Act of 1866 prohibits private racial discrimination. There is no doubt in my mind that that construction of the statute would have amazed the legislators who voted for it. . . . Were we writing on a clean slate, I would therefore vote to reverse. But Jones has been decided and is now an important part of the fabric of our law. . . . . . . . . . . For the Court now to overrule Jones . . . would be so clearly contrary to my understanding of the mores of today that I think the Court is entirely correct in adhering to Jones. Runyon v. McCrary, 427 U.S. 160, 189-92 (1976) (Stevens, J., concurring) (citation omitted).
90. See supra note 59 and accompanying text.
91. Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 Harv. L. Rev. 405, 452 (1989) (noting that Karl Llewellyn advised ruling on "the sense of the situation" and "mak[ing] sense . . . of our law" but "did not recognize that quite particular - and defensible - conceptions of 'sense' . . . might themselves be reflected in canons of construction. Llewellyn, like many of the realists, attempted to liberate legal thought from flawed structures . . . but structures are inevitably present" (internal quotation marks omitted)).
92. See, e.g., James C. Rehnquist, The Power That Shall Be Vested in a Precedent: Stare Decisis, the Constitution and the Supreme Court, 66 B.U. L. Rev. 345, 376 (1986) ("Stare decisis has long been seen as one of the great neutral principles of legal analysis. In truth, it is nothing but the rhetorical ally of those in favor of yesterday's decisions. The world of constitutional adjudication would be well-served by a rejection of this doctrine.").
93. The best arguments for relying on policy considerations typically come in the context of specific examples of policy arguments proving necessary to resolve statutory conflict and ambiguity. See, e.g., Edward A. Fallone, Section 10(b) and the Vagaries of Federal Common Law: The Merits of Codifying the Private Cause of Action under a Structuralist Approach, 1997 U. Ill. L. Rev. 71, 109 ("It is therefore inevitable that policy arguments play a critical definitional role in the securities fraud context because the vague language utilized by Section 10(b) and Rule 10b-5, and the broad purpose of Congress, can be construed to support a host of alternative definitions of the elements of the plaintiff's case.");
94. Jean R. Sternlight, As Mandatory Binding Arbitration Meets the Class Action, Will the Class Action Survive?, 42 Wm. & Mary L. Rev. 1, 21 (2000) ("Because existing statutes offer no explicit guidance on how to reconcile class actions and arbitration, courts and legislators inevitably will turn to policy arguments as they attempt to resolve the clash between these competing procedural devices.").
95. See supra notes 60, 84 and accompanying text (discussing Sunstein's views on the inevitability of statutory construction canons).
96. See infra Part III.B (discussing and documenting courts' adherence to "Policy Zero").
97. See infra Part III.B.
98. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 146-49 (2000).
99. Desert Palace v. Costa, 539 U.S. 90, 90 (2003).
100. Ash v. Tyson Foods, 546 U.S. 454, 456-57 (2006).
101. Burlington N. Santa Fe Ry. Co. v. White, 126 S. Ct. 2405, 2407 (2006).
102. Siegel, supra note 1, at 1097.
103. Id. at 1107-08.
104. Id. at 1168-69 ("[The] Court has invalidated . . . state tort law that would have permitted lawsuits seeking compensation from HMOs for violation of their 'duty of care' to their policyholders, from manufacturers of faulty medical devices for using fraud to obtain approval of the devices, from car manufacturers for failing to install optimal safety devices, and from cigarette manufacturers for failing to warn about the consequences of smoking." (citations omitted)).
105. United States v. Lopez, 514 U.S. 549 (1995).
106. United States v. Morrison, 529 U.S. 598 (2000).
107. Siegel, supra note 1, at 1172-73 (discussing Pierce County v. Guillen, 537 U.S. 129 (2003)).
108. Id. at 1147 (quoting Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 18 (1991)).
109. Id. at 1162 (collecting language from Court's sovereign immunity decisions).
110. Id. at 1161.
111. Id. at 1139-42 (citing Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991)).
112. Holmes, supra note 14, at 458, reprinted in 110 Harv. L. Rev. 991, 992 (1997).
113. County of Wash. v. Gunther, 452 U.S. 161, 178 (1981) (allowing a Title VII pay disparity challenge even though men's and women's jobs were not "equal work," and noting that "[o]ur interpretation . . . draws additional support from the remedial purposes of Title VII and the Equal Pay Act" (quoting S. Rep. No. 88-867, at 12 (1964)).
114. United Steelworkers of Am. v. Weber, 443 U.S. 193, 201, 204 (1979) (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975)).
115. Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick, and GMC Trucks, Inc., 173 F.3d 988, 994 (6th Cir. 1999) ("A white employee who is discharged because his child is biracial is discriminated against on the basis of his race, even though the root animus . . . [is] against the biracial child."). The Tetro court stated, "Title VII . . . [is] a clear mandate from Congress that no longer will the United States tolerate . . . discrimination. It is, therefore, the duty of the courts to make sure that the Act works, and the intent of Congress is not hampered by a combination of a strict construction of the statute in battle with semantics." Id. (quoting Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888, 892 (11th Cir. 1986) (holding that Title VII prohibits discrimination based on an employee's association or marriage with an African-American)).
116. Chisom v. Roemer, 501 U.S. 380, 403 (1991) (quoting Allen v. State Bd. of Elections, 393 U.S. 544, 567 (1969)).
117. See, e.g., id. at 403 ("Congress enacted the Voting Rights Act . . . for the broad remedial purpose of 'rid[ding] the country of racial discrimination in voting.' . . . [T]he Act should be interpreted in a manner that provides 'the broadest possible scope' in combating racial discrimination." (citations omitted)).
118. See, e.g., Abbott Labs. v. Portland Retail Druggists Ass'n, 425 U.S. 1, 11-12 (1976) ("[T]he antitrust laws, and Robinson-Patman in particular, are to be construed liberally and . . . exceptions . . . construed strictly. . . . Robinson-Patman 'was enacted in 1936 to curb and prohibit all devices by which large buyers gained discriminatory preferences over smaller ones by virtue of their greater purchasing power.' Because the Act is remedial, it is to be construed broadly to effectuate its purposes." (citations omitted)).
119. See, e.g., Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 785-86 (7th Cir. 2007) (reversing dismissal of plaintiff's claims of sex harassment and sex-based pay disparity); Bonner v. Guccione, 178 F.3d 581, 583 (2d Cir. 1999) (affirming a finding of liability for plaintiff on claims of sex harassment and sex-based pay disparity); Wallace v. Dunn Constr. Co., 62 F.3d 374, 377 (11th Cir. 1995) (ruling on an interlocutory appeal in a case featuring claims of sex harassment and sex-based pay disparity); Chancey v. Sw. Fla. Water Mgmt. Dist., 965 F. Supp. 36, 38-39 (M.D. Fla. 1997) (denying summary judgment on plaintiff's claims of sex harassment and gender-based pay disparity); Moye v. Fleming Co., Inc., 924 F. Supp. 1119, 1123 (M.D. Ala. 1996) (same).
120. Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998) (emphasis added).
121. Id. at 807.
122. See supra note 22 and accompanying text.
123. See supra note 23 and accompanying text.
124. L. Camille Hébert, Why Don't "Reasonable Women" Complain About Sexual Harassment?, 82 Ind. L.J. 711, 724-25 (2007). For illustrative cases, see supra notes 22-23 and accompanying text.
125. Id. at 721 & n.48.
126. Vandermeer v. Douglas County, 15 F. Supp. 2d 970, 981 (D. Nev. 1998) (denying defendant summary judgment on Faragher/Ellerth defense: "Since the plaintiffs have argued that they had legitimate reasons for not reporting Stangle's behavior, including a belief that his supervisors already knew about it, and had done nothing, it will be up to the trier of fact to determine whether or not the plaintiffs did act reasonably").
127. Phillips v. Taco Bell Corp., 156 F.3d 884, 889 (8th Cir. 1998) (reversing a grant of summary judgment to an employer where "[plaintiff] Phillips alleges that Sonntag's harassment began in March 1995; however, Phillips did not complain to Taco Bell until June 20, 1995, at which time she left a voice mail message"); see also Greene v. Dalton, 164 F.3d 671, 674-75 (D.C. Cir. 1999) (reversing a grant of summary judgment to an employer where the employee "waited more than a month" to file internal complaint, because of factual questions as to when it would have been reasonable to decide to report possibly escalating harassment).
128. Michael J. Zimmer et al., supra note 32, at 11 (2004 Supp.) (citing Hardy v. Univ. of Ill. at Chicago, 328 F.3d 361 (7th Cir. 2003) (finding an employee's two-month delay before reporting harassment not to be unreasonable where the employee was on medical leave for one month and allegedly needed another month to make a full complaint with all relevant information)).
129. See supra note 116 and accompanying text.
130. 218 F.3d 725 (7th Cir. 2000).
131. Id. at 731-32.
132. Id. at 732.
133. Id. (citations omitted).
134. For a decision "getting it right" in a similar manner, see, for example, George v. Liverpool Central School District, No. 97-CV-1232, 2000 WL 1499342, at *9 (N.D.N.Y. Sept. 29, 2000) (denying defendant summary judgment on Faragher/Ellerth defense where defendant's harassment policy may not have been disseminated effectively and where "plaintiff's excuse for not complaining is not merely a generic fear"). The court continued, [P]laintiff effectively distinguishes between the status of a tenured versus non-tenured teacher. . . . Plaintiff claims she was aware that prior to tenure, a teacher should not speak out or make waves. This sentiment was confirmed by one of plaintiff's colleagues . . . . [P]laintiff has raised an issue of fact as to whether her total failure to complain to Liverpool during the course of her employment was unreasonable. Id.
135. Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162, 2177 n.10 (2007) (citing Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 n.7 (2002)).
136. Morgan, 536 U.S. at 114 n.7.
137. E.g., Darby v. Stout Road Assocs., Inc., No. 06-CV-5009, 2007 WL 1630139, at *2 n.5 (E.D. Pa. June 4, 2007) (noting that both Ledbetter and Morgan left open the possibility of "discovery rule" tolling of limitations period, but not issuing a definitive holding under discovery rule).
138. W. Eric Pitts, Thomas v. Eastman Kodak Co.: A New Twist on Determining the Accrual Date for Causes of Action in Employment Discrimination Cases, 23 Am. J. Trial Advoc. 451, 454-55 (1999) (collecting authority from ten circuits recognizing the discovery rule).
139. Glass v. Petro-Tex Chem. Corp., 757 F.2d 1554, 1562 (5th Cir. 1985).