Oregon Law Review : Vol. 90, No. 2, p. 525-582 : Employment Retaliation and the Accident of Text
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Date
2011
Authors
Long, Alex B.
Journal Title
Journal ISSN
Volume Title
Publisher
University of Oregon School of Law
Abstract
As this Article attempts to illustrate, it is only a matter of time
before employment retaliation plaintiffs who are similarly situated to
plaintiffs who have won before the Court start losing. Indeed, some
of them are already losing in lower courts. And, as this Article
further attempts to illustrate, there is no good reason for the disparate
treatment. As the law currently exists, statutory retaliation plaintiffs
win or lose largely due to the accident of statutory text rather than the
fact that the law is operating as Congress envisioned or as part of a
coherent scheme of regulation. In short, the federal approach to
workplace retaliation is inefficient, unnecessarily complex, and in
need of major reform.
To that end, Part I catalogs the Supreme Court’s decisions on
employment retaliation and its relentless focus on statutory text. Part
II examines situations in which retaliation plaintiffs who are similarly
situated to those who have prevailed previously before the Court are
likely to eventually lose should the Court ever tackle the interpretive
issues in question. Part III discusses the unnecessary complexity and
lack of a coherent rationale that underlies the federal approach to
employment retaliation. In order to address these problems, Part IV
concludes by arguing in favor of a single antiretaliation provision that
would apply to all federal statutes that prohibit retaliation in private,
nonunion workforces.
Description
58 pages
Keywords
Citation
90 Or. L. Rev. 525 (2011)