This Article examines a new and as-yet unexplored development in retaliation law under Title VII and other anti-discrimination statutes: the denial of protection from retaliation to the class of employees charged with enforcing their employers’ internal anti-discrimination policies and complaint procedures. Through distinctive applications of traditional retaliation doctrine and newer rules formulated specifically for this class of employees, these workers are increasingly vulnerable to unchecked retaliation by their employers. This troubling trend has important implications for workplace retaliation law and for employment discrimination law more broadly. This Article makes two contributions to legal scholarship. First, it traces the legal doctrines that are leaving employees who have internal EEO responsibilities without meaningful protection from retaliation. Despite increased focus on retaliation law by legal scholars, these developments have not been explored in the legal literature and are significant in their own right for their virtual exclusion of an expanding class of workers from the law’s protection from retaliation. Second, the Article contextualizes these developments within the past two decades’ shift toward an internal governance model of employment discrimination law. As courts have come to embrace internal EEO policies as a measure of substantive compliance with the external law, retaliation law has become increasingly out of synch with the employer autonomy that this model preserves. The problems created by retaliation law’s treatment of EEO employees are part of a broader rift between retaliation law and discrimination law that this Article brings to light.
Deborah L. Brake,
Retaliation in the EEO Office,
Tulsa Law Review
Available at: https://scholarship.law.pitt.edu/fac_articles/373
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