Before the Supreme Court's pronouncement in Robinson v. Shell Oil Co., a majority of the circuit courts were blurring seemingly unambiguous language to expand Title VII's coverage to comport with amiable policy goals. Only policy justifications could explain the courts' willingness to cover postemployment retaliation based on language that prohibits an employer from discriminating "against his employees" and that further defines employees as those persons "employed by an employer." Clearly, the plain meaning of such language envisions that persons protected under Title VII have an existing employment relationship with the covered employer at the time of the alleged retaliatory conduct. Yet, nearly all circuit courts addressing the issue before Robinson found the policy arguments more compelling. In Robinson, the Supreme Court also found that the amiable policy goals of extended coverage weighed more heavily than the plain language of Title VII's anti-retaliation provision.
Barry T. Meek,
Robinson v. Shell Oil Co.: Policy-Not Ambiguity-Drives the Supreme Court's Decision to Broaden Title VII's Retaliation Coverage,
U. Rich. L. Rev.
Available at: http://scholarship.richmond.edu/lawreview/vol31/iss2/6