Employee Rights and Employment Policy Journal

This article endeavors to reveal the flaws with the courts' current construction of Title VII's anti-retaliation provision, under which employees resorting to internal complaint mechanisms receive only the most austere protection from retaliation under the opposition clause. Perhaps the most obvious victims of this diluted protection are the employees, torn between avoiding the Ellerth/Faragher affirmative defense by reporting discriminatory treatment as soon as it becomes evident, or avoiding actionable retaliation when their grievances are filed before the discrimination could "reasonably" be perceived as unlawful. Employees, however, are by no means the only victims of these weak retaliatory safeguards. Limiting employee retaliation protection in the context of internal grievance mechanisms to the opposition clause also works an equally undesirable result upon employers, who are virtually powerless to prevent the current epidemic of underutilization of these prophylactic internal procedures. Instead, employers must endure massive legal expenditures to combat discrimination litigation, as well as the decreased productivity and increased employee absenteeism and turnover that commonly result from workplace discrimination, all in exchange for a retaliatory "right" that is essentially worthless after the United States Supreme Court's holdings in Ellerth, Faragher and Kolstad. Despite this mutually detrimental impact, the current regime of austere protection cannot be said to effectively preserve any significant incentive for employer's to establish internal grievance procedures-and even the benefits produced by the marginal incentive that remains are largely illusory, as the incentive is preserved only at the expense of utilization.
I conclude that doctrinal change is necessary to grant employees engaging employer created complaint mechanisms the same retaliatory safeguards enjoyed under the participation clause. Failure to make such a change can only result in the preservation of a system that works an invidious harm on all the participants in the workplace, and that is antithetical to the very purposes underlying Title VII.