Justifiable limitations on Title VII anti-retaliation provisions.

• Author: Kreiswirth, Brian J.

Title VII prohibits not only discrimination, but also retaliation against employees who complain about discriminatory practices. The anti-retaliation provision extends protection both to employees who have "opposed any practice made an unlawful employment practice" under Title VII (the "opposition clause") and to employees who have "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under" Title VII (the "participation clause").(1) The importance of defending employees against retaliation for invoking statutory protection is clear: Without such protection, employees would be dissuaded from pressing their claims in the first place.(2) In Merritt v. Dillard Paper Co.,(3) however, a panel of the Eleventh Circuit extended this protection too far, reading the scope of Title VII's anti-retaliation provision so broadly as to cover harassers who participate in proceedings brought on account of their own unlawful behavior.

Existing Title VII jurisprudence did not mandate this result. The Merritt court should have paid more explicit attention to the purposes of Title VII when interpreting the language of section 704(a). In addition, the court should have balanced employer and employee interests in determining whether or not to shield the employee from retaliation, as courts have done in the opposition clause context. Either way, by denying harassers the protection of section 704(a), the court would have contributed to employer efforts to create work environments free from harassment and discrimination.

I

Janet Moore, a receptionist at Dillard Paper Company, initiated a lawsuit under Title VII alleging sexual harassment by several men in her office, including Harry Merritt. During his deposition, Merritt reluctantly admitted to conduct that plainly constituted harassment.(4) Dillard subsequently settled Moore's case. The company president then reviewed the deposition testimony and decided on this basis to terminate Merritt, who in turn filed his own Title VII suit, alleging unlawful retaliation. The district court granted summary judgment for the employer, ruling that Title VII "does not protect those who participate in another's case involuntarily and without any intent or desire to assist."(5)

The Eleventh Circuit reversed. In the panel's view, the participation clause of section 704(a) extends protection by its own terms even to those whose participation is neither voluntary nor intended to aid the complainant.(6) The panel refused to read the provision through the lens of clear statutory purposes, as the lower court had done,(7) and defended its literal interpretation by distinguishing the relevance of limits imposed in opposition clause cases.(8)

II

The court's interpretation of section 704(a) is in some tension with Supreme Court precedent and the general practice of the federal judiciary in retaliation cases. The panel applied a well-supported canon of statutory construction: "`[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there.'"(9) And it concluded that the language of the retaliation provision clearly and unambiguously included the plaintiff.(10) Surprisingly, however, the panel failed even to mention Robinson v. Shell Oil Co.,(11) a recent decision in which the Supreme Court interpreted the retaliation provision at issue in Merritt. A unanimous Court determined that the term "employees" as used in section 704(a) includes former employees,(12) even though a literal reading of the statute would not support this result. The Court applied the same canon as the Merritt court, but emphasized that clarity in meaning cannot be determined merely by considering words alone: "The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole."(13) Finding ambiguity, the Court resolved this lack of clarity in a fashion "more consistent with the broader context of Title VII and the primary purpose of [sections] 704(a)" than a literal reading.(14)

If the Eleventh Circuit had applied Robinson, it could not have relied as it did on literal interpretation divorced from context. Just as the word "employee" is subject to interpretation, it is far from clear that the phrase "participated in any manner" necessarily includes the testimony of an individual who is not attempting to assist the complainant, much less that of the person responsible for the alleged Title VII violation in the first place. Indeed, the clear purpose of section 704(a) is to protect employees who utilize the tools provided by Congress to assert their rights.(15) Under Robinson, therefore, it is...