Supreme Court Holds Former Employees Are Protected by Title VII's Anti-Retaliation Provision

The United States Supreme Court, in a unanimous decision, has held. that former employees may sue under Title VII of the Civil Rights Act of 1964 to challenge alleged retaliation by their past employers. Robinson v. Shell Oil Co. The Supreme Court's decision reinstated the retaliation claim of Charles Robinson, who had sued his former employer, Shell Oil Company, after one of his prospective employers received a negative job reference from Shell. In its decision, the Supreme Court adopted the broad interpretation of Title VII's definition of "employee" that had been advocated by the Clinton Administration and the Equal Employment Opportunity Commission. The decision could open the door to a substantial number of potential retaliation claims under Title VII.

The decision hinged on the proper interpretation of Title VII's definitional provisions. Title VII's prohibition of retaliation, contained in Section 704(a) of the Act, makes it unlawful "for an employer to discriminate against employer to discriminate against for employment" due to their opposition to any practice prohibited by Title VII, or their participation in any proceeding under Title VII. The issue before the Supreme Court was whether the term "employees" includes former employees, i.e., persons challenging a former employer's "post employment actions allegedly taken in retaliation" for the former employee's filing of an EEOC charge or other protected conduct.

The Supreme Court first examined whether Title VIIs use of the term "employee" had a plain and unambiguous meaning. The Court determined that the statutory term did not have a plain and unambiguous meaning, because the term "employees" was used throughout Title VII in different ways, sometimes clearly referring to a current employee, but other times necessarily including former employees.

The Supreme Court resolved this ambiguity by concluding, based upon the broader context of the statute and Title VII's remedial purposes, that the term "employees ' " as used in the anti-retaliation provision of Title VII, includes former employees within its protection. To support its conclusion, the Court noted that Section 704(a) in part prohibits retaliation against employees for filing a charge under Title VII, and a charge alleging unlawful discharge "would necessarily be brought by a former employee. " Consequently, the Court reasoned, it is far more logical to include former employees within the scope of "employees" protected by Section 704(a). Moreover, the Court was persuaded by the EEOC's arguments, in the agency's "friend of the court" brief, that exclusion of former employees from protection from retaliation would undermine Title VII by allowing the threat of post employment retaliation to deter persons from complaining to the EEOC. The EEOC also argued, successfully, that allowing retaliation against former employees would provide "a perverse incentive for employers to fire employees who might bring Title VII claims."