Rationing Retaliation Claims

According to the U.S. Supreme Court, the rising number of workplace retaliation claims is a problem, one warranting more stringent requirements for employees to successfully bring claims. The Court’s principal justification for this restrictive approach is a fear of “opening the floodgates” of litigation. This Article critically assesses the Court’s fear of opening the floodgates of retaliation claims, evaluates the Court’s evidence, and argues that such concerns are overstated and misplaced. Rather than a cause for concern, the rise in retaliation claims reflects rising intra-organizational conflict. Social scientists have demonstrated that, as the American workforce becomes more diverse, intra-organizational conflict increases, and the propensity for civil rights violations grows. In other words, claims are on the rise because retaliation is on the rise. Employment discrimination and other related statutes are aimed at mitigating the harms of this expected rise in intra-organizational conflict. The Article further argues that considerations of judicial economy are particularly misplaced in workplace retaliation cases. Retaliation protections are crucial to the private enforcement scheme Congress developed for civil rights laws generally and employment discrimination laws in particular. Attempting to limit judicial caseloads through restrictive interpretations of anti-retaliation laws eviscerates private enforcement, producing under- enforcement of these core civil rights protections. To remedy the Supreme Court’s wrong turn on retaliation, Congress should act. This Article proposes that Congress adopt a rule of construction mandating broad interpretation of all workplace anti-retaliation statutory provisions. This provision would strengthen critical civil rights safeguards for employees by restoring the optimal and essential function of retaliation provisions