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Non-employment action can be retaliation
March 14, 2006 by Ross Runkel at LawMemo
I want to dramatize how different Title VII's retaliation section is from its main section.
Section 703(a)(1) (the main section):
- prohibits discrimination because of an individual's race, color, religion, sex, or national origin.
- says the employer must not "discriminate against any individual with respect to [the individual's] compensation, terms, conditions, or privileges of employment."
Section 704 (the retaliation section):
- prohibits discrimination because an individual has --
- "opposed any practice made an unlawful employment practice by" Title VII
- "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under" Title VII.
- or -
- says the employer must not "discriminate against" the individual. Period.
The purposes of 703 and 704 are different. Section 704 is designed to protect the process, to protect courts from employer interference, to protect the EEOC from employer interference, and to protect employees who oppose illegality. That is totally different from 703, which is designed to protect employees against job changes because of race, sex, etc.
The kinds of discrimination prohibited are different. Section 703 applies only to discrimination with respect to job-related things. Section 704 prohibits discrimination, period.
Some lawyers say 704 should be read as if it had the extra 703 language in it. Perhaps Congress had a slip of the pen, and really meant to include a dozen or so words. (Some slip!) Perhaps "discrimination" in 704 was simply "shorthand" for discrimination in 703. I don't think so.
It looks to me like Congress knew exactly what it was doing in Section 704. Two things:
- Purpose: Protecting the litigation and enforcement process from employer interference.
- Method: Prohibiting all forms of discrimination against employees who oppose illegal practices or participate in Title VII proceedings.
This means the forms of discrimination forbidden by Section 704 are unhooked from the limitations of Section 703.
- The discrimination need not be a tangible employment action like a discharge or refusal to hire or a demotion. Why? Because the discrimination doesn't have to be "with respect to" terms and conditions of employment.
- The discrimination need not be "severe or pervasive." Why? Because that requirement was designed to screen out 703 cases in which there was little effect on employment conditions.
- The discrimination can involve something totally disconnected from the job. Why? Because 704 reaches all discrimination, and does not have the 703 limitation of "with respect to" terms and conditions of employment.
One case in point. Rochon v. Gonzales (DC Cir 02/28/2006). The court said the employee "was not required to demonstrate his employer's retaliatory act was related to his employment." Rochon was an FBI agent who filed a formal EEO complaint and later claimed his employer discriminated against him because of that (so far, a classic retaliation claim).
The big deal in the Rochon case was the alleged retaliatory act. He claimed that the FBI received death threats against him and his wife from a prison inmate. Standard procedure is for the FBI to investigate and take protective steps. Rochon claims the FBI did not do this.
The DC Circuit correctly held that the employee had a claim even though the employer's retaliatory act was not related to his employment.
The US Supreme Court will have a chance to clarify some of this in Burlington Northern v. White, which is now pending. However, that case does not include an issue on non-employment retaliatory actions.
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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