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Cardozo Law Review

Abstract

Over the last decade, retaliation claims under our federal employment discrimination laws - such as Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act of 1990 (ADA), and the Age Discrimination in Employment Act of 1967 (ADEA) - have skyrocketed. In that period, these claims have increased in number by over fifty percent and now rank as the single most popular claim filed with the Equal Employment Opportunity Commission (EEOC).

A critical element in these retaliation claims is the presence of "protected activity" by the whistleblowing employee. One type of protected activity is "opposition" activity, which encompasses less formal reports or protests, such as making internal complaints about harassing workplace conduct to a supervisor or human resources department.

Currently, federal courts narrowly define what qualifies as protected opposition activity under the Title VII, ADA, and ADEA antiretaliation provisions. Specifically, a whistleblowing employee is protected only if two requirements are met: (i) the employee had an honest, good-faith belief that the reported conduct was unlawful under federal employment discrimination law; and (ii) the employee's belief was either correct (i.e., the conduct was actually unlawful) or reasonably incorrect (i.e., she was at least reasonable in believing that the conduct was actually unlawful). In other words, our courts protect whistleblowing employees only if they are honest, "correct believers" or honest, "reasonably incorrect believers."

This definition of protected opposition activity is flawed because it focuses only upon the correctness or reasonableness of a whistleblowing employee's belief and does not accommodate the reasonableness of her action. That belief-driven focus fails to protect multitudes of employees who not only possess an honest, good-faith belief that workplace conduct was unlawful under federal employment discrimination law, but also then act reasonably under the circumstances to stop it by internally reporting it.

This Article argues that the definition of protected opposition activity should be expanded to protect whistleblowing employees who are honest, "reasonable actors." Specifically, this Article proposes and defends the addition of a "Reasonable Action Option" to that definition. This proposed approach represents a significant improvement in federal antiretaliation law for three reasons: (i) It is consistent with the Supreme Court's "reasonable worker (re)action" philosophy that is clearly evidenced in its post-1998 employment discrimination and retaliation decisions; (ii) It avoids a so-called "Goldilocks problem," where an employee's retaliation claim is destroyed by an internal complaint that is timed "too soon" and is only protected by one that is somehow timed "just right"; and (iii) It promotes the purpose and policy behind the antiretaliation provisions of our federal employment discrimination laws.

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