Oregon Law Review : Vol. 90, No. 2, p. 525-582 : Employment Retaliation and the Accident of Text
Long, Alex B.
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.