Retaliation in an EEO World

Citation data:

89 Indiana Law Journal 115 (2014), Vol: 89, Issue: 1

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Brake, Deborah L
Digital Repository @ Maurer Law
Equal Employment Opportunity; EEO; Employment Law; Affirmative action programs; Lex talionis; Work environment; Appellate courts; Plaintiffs; Discrimination in employment; Administration of Human Resource Programs (except Education; Public Health; and Veterans' Affairs Programs); Provincial courts of law; Federal courts of law; Civil Rights and Discrimination; Labor and Employment Law; Law
article description
This Article examines how the prevalence of internal policies and complaint procedures for addressing discrimination in the workplace are affecting legal protections from retaliation. Retaliation has been an unusually active field of law lately. The Supreme Court’s heightened interest in taking retaliation cases in recent years has highlighted the central importance of retaliation protections to the integrity of discrimination law. The Court’s string of plaintiff victories in retaliation cases has earned it the reputation as a pragmatic, pro-employee Court when it comes to retaliation law. However, this view does not account for the proliferation and influence of employer EEO policies and complaint procedures. Reviewing the sociolegal scholarship on the structure and functioning of the EEO workplace reveals important insights into how retaliation law operates. This Article contends that, considered against the backdrop of how employer policies channel employee complaints, the picture of retaliation law for employees is not nearly as rosy as the Court’s decisions have led legal scholars to believe. Focusing on the interplay between retaliation doctrine and employers’ internal discrimination policies, the Article demonstrates that the lesser level of protection afforded to internal discrimination complaints creates stark dilemmas for employees who follow employer policies to complain about perceived inequality in the workplace. Two doctrines in particular, the reasonable belief doctrine and the notice requirement, clash with the role of employer policies in shaping employee perceptions of and responses to discrimination in the workplace. The Article concludes by offering a proposal for revamping retaliation law to better accommodate the realities of the EEO workplace.