Article Title
Rejecting Reasonableness: A New Look at Title VII's Anti-Retaliation Provision
Abstract
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.
