The Lawletter Vol 35 No 12, August 26, 2011
Dora Vivaz—Senior Attorney, National Legal Research Group
Since the passage of the various employment discrimination laws, the courts have grappled with how to handle claims of retaliation as opposed to other discrimination claims. Under Title VII, there is an express prohibition against retaliation for "opposition" to discrimination made unlawful by Title VII and for "participation" in Title VII proceedings.
It has long been established that there is a requirement under the opposition clause that a plaintiff have had a good-faith belief that the conduct which he or she was opposing was, in fact, unlawful under Title VII. See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 269 (2001) (charges that are without merit or brought in bad faith are not deserving of protection under the opposition clause). As the court noted in Ayala v. Summit Constructors, Inc., No. 3:08-cv-01100, 2011 WL 1560912, *14-17 (M.D. Tenn. Apr. 25, 2011), however, there is currently a split in the circuits concerning whether such a requirement also applies to claims brought under the participation clause. The court further noted that even within its circuit, the district courts have not been consistent.
The court first reviewed prior Sixth Circuit cases, which had strongly suggested that the good-faith, or reasonableness, requirement does not apply to participatory conduct, going so far as to state in dicta that protection is not lost even when the contents of a charge are malicious and defamatory, as well as wrong on the merits. Id. at *14-15 (citing cases). The court then reviewed cases from other circuits, some of which had applied the good-faith requirement, others of which had not. After its analysis of the relevant cases, the court concluded that it would be inappropriate to now adopt the good-faith reasonableness standard urged by the defendant in the case and that, to the contrary, the rule remains that plaintiffs who have participated in EEOC or other Title VII proceedings are afforded "exceptionally broad protections." Undoubtedly, the issue will eventually have to be resolved at a higher level.
