I have always been intrigued by the adjudication of workplace retaliation claims by U.S. courts. The act of retaliation itself, and the myriad ways that it is accomplished, is interesting because it can be subtle, “served cold” (delayed), or barely perceptible. With that in mind, I recommend to you Daiquiri J. Steele’s Rationing Retaliation Claims. In this piece, Professor Steele thoughtfully takes on the issue of the U.S. Supreme Court’s “fear of opening the floodgates” of litigation when it comes to retaliation claims in the employment context. Professor Steele concludes that this fear is “overstated and misplaced,” a conclusion that I think is correct, and is also thoughtfully reached and well researched. This makes her piece a great contribution to the current discourse on this most important topic.
Professor Steele argues persuasively that rather than sounding the alarm when it comes to the uptick in retaliation claims filed by employees, we should be paying heed to them, as they are a sign of intra-organizational conflict. Significantly, Professor Steele notes, these claims are properly surging, because, as her research documents, the practice of retaliation is surging. Moreover, according to Professor Steele, “considerations of judicial economy are particularly misplaced in workplace retaliation cases,” because it is precisely the anti-retaliation statutory mechanisms and provisions that give civil rights statutes any teeth, so to speak, and enable plaintiffs to even think about coming forward to vindicate their rights without being intimidated.
As Professor Steele plainly puts it, “[a]ttempting to limit judicial caseloads through restrictive interpretations of anti-retaliation laws eviscerates private enforcement, producing under-enforcement of these core civil rights protections.” She argues that, whereas the Supreme Court has been moving toward increasingly restrictive reads on statutory protection from retaliation, the path forward lies in legislative reform.
Specifically, Professor Steele posits that it is now incumbent upon Congress to create a mandate for courts to employ a broad interpretation of every workplace anti-retaliation statutory provision. By adopting such a rule of construction, Professor Steele argues, Congress would “strengthen critical civil rights safeguards for employees by restoring the optimal and essential function of retaliation provisions.” This bold proposal is couched in a thoughtful analysis of congressional intent, legislative history, and policy objectives surrounding workplace regulation.
Moreover, as Professor Steele reminds her reader, the fear of retaliation inherent in trying to vindicate employee rights, unchecked, can keep people from utilizing the law to engender equality and fairness when it comes to areas such as “discriminatory hiring, firing, and promotion decisions; harassment; pay inequity; wage theft; occupational safety and health hazards; and family and medical leave encroachments.”
What I really “like lots” about this piece is the way that it squares off against the perennial argument given for opposing the broad construction of all portions of workplace statutes—including their antiretaliation provisions. This arguments is that broad interpretations usher more people in under the protective umbrellas of the statutes and loosen/open the proverbial “floodgates of litigation,” and that restrictive interpretations are needed to stave off this result. In the first place, it is wonderful that the piece laments and documents the repetition of floodgate concerns by courts as the proliferation of their use to substantiate overly-restrictive statutory interpretation.
I also really liked the way Professor Steele used facts to contradict the unfounded fears and assertions of those with “floodgates” fears. For example, she maintains that “there is a difference between keeping the floodgates from opening and closing them,” but notes that while “The Nassar Court [which adopted a but-for causation standard for Title VII retaliation clams] seemed to suggest that a change in the Title VII retaliation causation standard would do both,” the hard, cold “data shows that it has done neither,” and cites to data put out by the EEOC.
The other thing that I really “like lots” about Professor Steele’s scholarly voice in this piece is the frankness and freshness of her observations and contentions. At the end of the day, she says, irrespective of the threat of “floodgates” bursting open if courts utilize broader interpretations, the fact remains that “changing substantive law to decrease workload is itself dysfunctional.” This piece is rife with such sharp, fresh observations, and this, combined with the care that Professor Steele took in tracing back the history and impact of the so-called “floodgates” argument, makes for a most valuable contribution to the literature.
Ultimately, Professor Steele makes a most persuasive argument that, as she puts it, “Floodgates arguments are incongruent with anti-retaliation laws.” Her discussion of the incentives and deterrents inherent in the construction of antiretaliation provisions is excellent, as is her analysis of current caselaw, like the Nassar case, to which a whole section is devoted. Her engagement with courts’ floodgate concerns is as thorough as it is thoughtful. Specifically, her discussion of judicial inconsistencies when it comes to these concerns and her incorporation of social science into that discussion makes this piece more than just the exposition of a proposal worthy of thought, but a rounded-out discussion that supports and methodically leads the reader towards her proposal.
Professor Steele makes the excellent point that her proposal is not completely unprecedented, and her discussion of both RICO and the Americans with Disabilities Act in that vein is smart and persuasive. By the time the reader gets to the piece’s call for Congress to draft a statute that mandates the broad interpretations of anti-retaliation provisions, the foundation with respect to the need for it has been excellently laid. The idea itself is truly food for thought. I intend to run it by my students; it is an excellent springboard for the discussion of the efficacy of workplace legislation.
