Retaliation and the Rule of Law in Today's Workplace

• Publication year: 2022

44 Creighton L. Rev. 749. RETALIATION AND THE RULE OF LAW IN TODAY'S WORKPLACE

RETALIATION AND THE RULE OF LAW IN TODAY'S WORKPLACE

R. George Wright(fn*)

I. INTRODUCTION

The primary aim of this Article is to justify revising and expanding today's law of workplace retaliation. The argument emphasizes, in particular, the meaning and value of the rule of law, in a broad sense, in workplace retaliation cases. As it turns out, based on the rule of law and other values, the case law, on balance, under-pro-tects employees against retaliation by both private and public employers. This holds in typical status-based civil rights and non-discriminatory contexts(fn1) and in the area of public employee freedom of speech as well.(fn2)

Retaliation claims brought by employees against their employers are a substantial and increasing component of the broad civil rights docket.(fn3) Specifically, retaliation claims brought under the statutes administered by the federal Equal Employment Opportunity Commission nearly doubled between 1997 and 2009.(fn4) Retaliation claims have steadily increased as a percentage of all claims, over the same time frame, from 22.6 percent to 36.0 percent.(fn5) Yet there are reasonable grounds to conclude that such claims are still, on balance, under filed.(fn6)

More generally, claims of retaliation can be brought pursuant to a variety of federal civil rights statutes against employers and non-employers alike. Such statutes include, prominently, Title VII of the Civil Rights Act of 1964.(fn7) Among other relevant federal statutes are Section 504 of the Rehabilitation Act of 1973,(fn8) the Americans With Disabilities Act of 1990,(fn9) Title IX of the Education Amendments Act of 1972,(fn10) Title 42 Section 1981 on racial discrimination in contracting,(fn11) Title 42 Section 1982 on racial discrimination with regard to prop-erty,(fn12) and the federal-sector provision of the Age Discrimination in Employment Act of 1967.(fn13) Retaliation claims, particularly against an employer, are thus widely available, whether the potential remedy is exclusively equitable or not.(fn14)

Courts have also focused on possible underlying purposes for allowing retaliation claims, whether such claims are expressly provided for by a particular statute or not.(fn15) In explaining the value of retaliation claims against an employer, courts have pointed to several considerations, some partly independent of the substantive focus of the particular civil rights or anti-discrimination statute in question. The Supreme Court explained:

Thus in the context of Title VII, but with broader applicability, the Supreme Court of the United States has distinguished the underlying substantive anti-discrimination aim from that of the anti-retaliation provision in the following terms: The antidiscrimination provision seeks a workplace where individuals are not discriminated against because of their racial, ethnic, religious, or gender-based status ... . The anti-retaliation provision seeks to secure that primary objective by preventing an employer from interfering (through retaliation) with an employee's efforts to secure or advance enforcement of the Act's basic guarantees.(fn16)

The United States Supreme Court reformulated the basic purpose of the anti-retaliation provision as that of "[m]aintaining unfettered access to statutory remedial mechanisms,"(fn17) and "to ensure that employees are 'completely free from coercion against reporting' unlawful practices."(fn18) More concretely, the Court has also observed that if "an employee who reported discrimination in answering an employer's questions could be penalized with no remedy, prudent employees would have a good reason to keep quiet about Title VII offenses against themselves or against others."(fn19)

This Article has no objection to thinking of anti-retaliation provisions in civil rights and other statutes as indirectly promoting the particular substantive non-discrimination aims of the statute in question. This Article's major thesis, however, is that anti-retaliation provisions, whether express or judicially inferred, often reflect an important additional value. This Article refers to this broad, fundamental, and unavoidably hazily expressed value as the "integrity of the rule of law."

In this context, the idea of the integrity of the rule of law applies to both private and public employers when any official formal or informal mechanism or channel authorizes, or requires, an employee to answer questions in good faith or to present the employee's thoughts on any matter implicating a protected civil right. The official mechanism may be as formal and as generally available as grand jury, trial, or legislative testimony; discovery; or administrative proceedings. Or, the official mechanism may be as informal as authorized channels for internally investigating, reporting, or discussing matters related to possible civil rights violations.

In such cases, the integrity of the rule of law value requires restraint, openness, consistency, and responsibility, particularly on the part of the employer. There must be fidelity and respect for the sustained operation and integrity of the channels in question. This is true whether those channels are largely independent of the employer's own commitments, as in the case of most legal or administrative hearings, or are largely internally designated channels for the good faith discussion of matters such as sexual harassment.

This Article's main thesis is that properly providing for retaliation claims, under any appropriate civil rights-oriented or other anti-discrimination statute or constitutional provision, promotes the integrity of the rule of law as described herein.(fn20) This, in itself, is an important, and in fact fundamental, value. And in general, any employer retaliation or threat of retaliation, whatever its nature and severity (or lack thereof), amounts to an attack on that integrity.

But even more crucially, from the standpoint of the immediate parties, a proper focus on the integrity of the rule of law provides a better general perspective on retaliation cases. In particular, focusing on the rule of law's integrity exhibits how anti-retaliation values are being unjustifiably under-enforced in both private(fn21) and public(fn22) employer cases. These cases include not only what is thought of as typical status-based civil rights and anti-discrimination cases,(fn23) but public employee freedom of speech cases as well.(fn24) The integrity of the rule of law will often require an appropriate judicial response to any act or threat of intentional retaliation, regardless of whether the employee suffered material harm from, should have resisted, or did resist any threatened or actual retaliation however apparently minimal that retaliation might have been.(fn25)

II. RULE OF LAW INTEGRITY AND THE PRIVATE EMPLOYER CASES

A. The Idea of the Rule of Law

It is not immediately easy to work with the idea of the rule of law. The idea in general lacks clarity,(fn26) perhaps even internal consis-tency.(fn27) Some formulations of the idea are too narrow for this Article's purposes, focusing merely on formal laws publicly made and publicly administered by judicial bodies.(fn28) Some classic formulations elaborate on more dimensions of the rule of law than are realistically required for this Article's purposes.(fn29)

Perhaps no standard treatment of the rule of law, of the sort typically focusing on constitutions, statutes, and their implementation and interpretation by courts and other public officials, precisely fits this Article's concern. This Article's context is that of private and public employers and employees, various sorts of workplaces and disputes, as well as various formal and informal means of investigating and processing relevant claims.

But at least some flavor of the integrity of the rule of law value is conveyed in the thoroughly familiar formula of the rule of law as distinguished from the rule of persons, or of men. This general idea recurs throughout the case law.(fn30) In particular, Professor Brian Tamanaha has recently written of "the primacy of the rule of law as distinct from the rule of persons"(fn31) as important to the idea of the rule of law.(fn32)

In itself, and as fairly adapted to private and public work place-process contexts, this sense of the rule of law suggests that the integrity of any officially recognized relevant process requires consistent and meaningful employer respect for that process. Such respect crucially requires refraining from imposing, somehow threatening, or condoning any degree of retaliation for the good faith participation by an employee, voluntarily or otherwise, in the processes in question. If an employer establishes or recognizes such processes but later imposes or validates any degree of retaliation based on an employee's good faith cooperation with such processes, the employer has hypocritically engaged in the civilized processing of disputes and potential disputes. The employer thus has failed to appropriately respect rule of law integrity values.

Merely for the sake of one concrete example of such a process, consider the case of Weger v. City of Ladue(fn33) discussing a police department sexual harassment policy.(fn34) Under the policy in question, all employees were "required to report observed acts of harassment to a supervisor and failure to...