Retaliation

• Author: George Rutherglen
• Pages: 82

Like many comprehensive statutes, Title VII contains substantive provisions that safeguard the operation of its procedures for enforcement.

In Title VII, these are provisions against retaliation. The statute prohibits employers from making personnel decisions and taking other actions that discourage or punish attempts to enforce rights under the statute. Section 704(a) protects employees and applicants for employment from retaliation for having asserted their rights in two separate ways: for having "opposed any practice made an unlawful em ployment practice by this title" or for having "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this title."[397] The first of these clauses, which protects opposition by self-help, has generally been more narrowly interpreted than the second, which protects participation in enforcement proceedings.

Opposition under the first clause raises questions about the form of protest used. Some forms of protest, such as violence or destruction of property, clearly are unprotected. The difficult questions concern the traditional methods of protest used by unions and labor organizers, such as strikes, picketing, and boycotts. In a case arising under the National Labor Relations Act (NLRA), the Supreme Court held that picketing in protest of allegedly discriminatory practices was not protected by the NLRA from employer retaliation when it was not authorized by the union that represented the employees involved.[398]

Although the Court did not decide the question whether the employees' conduct was protected under section 704(a) of Title VII,[399] its holding implied that their conduct was also unprotected under Title VII; otherwise, the employees could have obtained substantially the same remedy under Title VII that they were denied under the NLRA.

In any event, other federal courts have held that protection for opposition through economic pressure is less extensive under section 704 than under the corresponding provision of the NLRA.[400] This result is generally correct, since Title VII sets up a scheme of administrative and judicial remedies for employment discrimination, whereas the NLRA sets up a scheme of collective bargaining that contemplates the use of economic pressure by both labor and management.

The only respect in which the opposition clause has been broadly construed concerns the permissible aims, not the permissible means, of protest...