Article by B. Glenn George
This Article begins with a discussion of the development of retaliation claims under Title VII, reviewing the elements of the cause of action and how those elements are generally defined by the courts. Particular focus is directed at what constitutes an adverse action for retaliation purposes, highlighted by the Supreme Court's recent decision in Burlington Northern & Santa Fe Railway v. White and subsequent cases applying this decision. Part I concludes with an exploration of why retaliation claims may provide a more successful and attractive option for Title VII plaintiffs than the underlying claims of discrimination.
Part II of the Article continues with a discussion of sexual harassment law and its liability standards. It includes an examination of how sexual harassment law has influenced the development of retaliation law and the consequences of that interaction. With grounding in both retaliation and sexual harassment law, Part III addresses some of the unresolved issues in retaliation claims, focusing particularly on two issues. First, this Part explores inconsistencies in courts' approaches to retaliation claims, especially with regard to the requirement of a case-by-case consideration of individual circumstances. Second, Part III considers the problem illustrated by Breeden—early reporting of potential harassment encouraged by sexual harassment law could bar an employee from claiming retaliation. The Article seeks to probe the seriousness of the issue and addresses ways that the law might be modified to address the problem.
About the Author
B. Glenn George. Professor of Law, University of North Carolina at Chapel Hill, School of Law.
Citation
83 Tul. L. Rev. 439 (2008)