This Article argues that the “reasonableness” requirement of Title VII should be rejected. Under this approach, a plaintiff’s complaint would be protected unless the defendant could establish that the plaintiff was acting in bad faith at the time she made the complaint. Such a standard would offer employers some protection from retaliation suits based on frivolous complaints without compromising the significant goals the retaliation provision can serve. Part I provides background on Title VII and the anti-retaliation provision, particularly the “opposition” clause, explains why the anti-retaliation provision is necessary and how courts have interpreted the scope of the conduct it protects, and identifies the problem with the current approach, namely, that the “reasonableness” requirement provides too little clarity as to what conduct is protected and gives courts a powerful tool by which they can limit the scope of protected conduct under the statute. Part I concludes with a discussion of the D.C. and Fourth Circuit decisions that illustrate the problems this approach creates. Part II explains why these decisions are so problematic, especially in the context of hostile work environment claims, examines how these courts’ definitions of the term “reasonableness” threaten to undercut the anti-retaliation provision’s effectiveness by discouraging harassment victims from reporting what they are experiencing, especially in the earliest stages of the harassment, and then argues that the way to address this problem is not to craft some alternative definition of the term reasonable; rather, the better approach is to reject the “reasonableness” requirement altogether. Part III explores the benefits of this approach and discusses how a stronger anti-retaliation provision will serve Title VII’s myriad goals. These benefits relate, in part, to enforcement: Individuals will be more likely to report conduct if they believe that their complaint will be protected, and this approach will also facilitate more informal methods of resolving harassment claims. But the benefits go beyond enforcement. By encouraging individuals to report harassment, the anti-retaliation provision can facilitate a change in the norms that govern the workplace and can ameliorate the harms that harassment causes.
Gorod, Briane J. "Rejecting Reasonableness: A New Look at Title VII's Anti-Retaliation Provision." American University Law Review 56, no. 6 (August 2007):1469-1523.