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Copyright (c) 2001 Houston Law Review
Houston Law Review

COMMENT: Title VII Section 704(a) Retaliation Claims: Turning a Blind Eye Toward Justice

Summer, 2001

38 Hous. L. Rev. 577


Linda M. Glover



Within the burgeoning area of Title VII 1 discrimination litigation, retaliation claims are garnering attention both for their increasing number and for their inconsistent adjudication by circuit courts of appeals. 2 As the number of claims exponentially multiplies, so does confusion about the appropriate threshold of liability for employers' retaliatory conduct; 3 yet, the threshold set forth in section 704(a) of Title VII appears deceptively simple. 4 The plain language of the provision prohibits employers from discriminating against employees for participating in Title VII processes 5 or for opposing 6 discrimination proscribed by Title VII. 7 The divergent precedent, however, is far more complex and ranges from prohibiting merely harassing conduct to requiring that retaliation involve an "ultimate employment decision." 8

This disarray in precedent stems from inconsistent statutory interpretation and inappropriate application of one of the prima facie elements of a section 704(a) claim. 9 A split in authority has led to three distinct liability thresholds for Title VII, section 704(a) retaliation claims. 10 Under the first threshold, an employer's retaliatory conduct must rise to the level of an "ultimate employment decision"--those decisions involving hiring, promoting, compensating, or discharging--to be actionable. 11 The second threshold, while not restricting actionable conduct to "ultimate employment decisions," requires that retaliation "materially" or "tangibly" affect an employee's terms or conditions of employment. 12 In sharp contrast, the third threshold does not advocate a "laundry list" approach to retaliation; instead, it recognizes that ...
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