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Note: Amending Title VII to Safeguard the Viability of Retaliation Claims

By Brandon Wheeler. Full text here.

Before a victim of employment discrimination can pursue her claims in federal court, she must first exhaust her administrative remedies. This is done by filing a charge with the Equal Employment Opportunity Commission or an equivalent state agency. After reviewing and investigating the charge, the EEOC usually issues a “right-to-sue” letter, signaling that the employee has exhausted her administrative remedies and can now sue in federal court.

Along with discrimination, Title VII of the Civil Rights Act of 1964 also prohibits retaliation by an employer against employees who file a charge with the EEOC or initiate a discrimination lawsuit. Such an act of retaliation, by its nature, occurs after the employee’s initial filing with the EEOC. This Note addresses two questions that arise from such a scenario. First, does Title VII’s exhaustion of administrative remedies doctrine require the employee to file an additional charge with the EEOC before she can sue for retaliation? Second, should it?

A circuit split currently exists, with courts differing on interpretations of Title VII’s statutory text and the Supreme Court’s holding in National Railroad Passenger Corp. v. Morgan. This Note argues that the statute and precedent require the EEOC to review each “discrete act” before a plaintiff can commence a federal discrimination lawsuit pertaining to that act. This Note argues that retaliation against an employee for filing an initial charge or lawsuit is an act “discrete” from the underlying claims of discrimination, and thus requires a second charge with the EEOC.

However, this Note further argues that such a requirement, while legally mandated, detrimentally affects victims of employment discrimination. This Note argues that a strong anti-retaliation mechanism is essential to ending workplace discrimination, and a second filing requirement would significantly weaken that mechanism by overly complicating an already complex procedural scheme. Finally, this Note proposes an amendment to Title VII that exempts post-filing retaliation claims from mandatory EEOC review, striking a balance between the EEOC’s interest in reviewing all Title VII claims and a plaintiff’s interest in fair procedural requirements.