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Brandon Wheeler

Abstracted from: Brandon Wheeler, Amending Title VII to Safeguard the Viability of Retaliation Claims, 98 Minnesota Law Review 775 (December, 2013) (186 Footnotes)(Student Note


From 1999 until 2009, Mischelle Richter worked as a store manager at Advance Auto Parts, Inc. After reporting to her supervisor that some of her coworkers were engaging in various transgressions, the supervisor demoted Ms. Richter from the store manager position. Four days after the demotion, Ms. Richter filed a charge with the Equal Employment Opportunity Commission (EEOC), alleging race and sex discrimination. Seven days after filing the EEOC charge, Advance Auto Parts terminated Ms. Richter. The EEOC eventually dismissed the charge, and Ms. Richter filed a suit in federal district court. However, instead of alleging the charges found within her original EEOC complaint, Ms. Richter alleged that Advance Auto Parts had illegally retaliated against her for filing a charge, a violation of Title VII of the Civil Rights Act of 1964. The district court dismissed Ms. Richter's complaint for failure to exhaust administrative remedies. The Eighth Circuit affirmed that holding, reasoning that a retaliation claim was an act "discrete" from the discriminatory actions complained of in an EEOC charge. Under the reasoning of the Eighth Circuit, each discrete act requires review by the EEOC.

While some circuits have held that post-EEOC-filing discriminatory acts are "discrete acts" and require an additional EEOC charge, others have held that some post-EEOC-filing discriminatory acts are "reasonably related" to the original EEOC charge and do not require an additional EEOC charge. The circuit split arose from the Supreme Court's holding in National Railroad Passenger Corp. v. Morgan that discrete discriminatory acts which preceded an EEOC charge by more than 300 days were barred by the statute of limitations, even if the discriminatory acts were reasonably related. Courts have interpreted Morgan two different ways: (1) Morgan should be read narrowly to apply only to pre-EEOC-charge discriminatory acts; or (2) Morgan should be read broadly to apply to all discriminatory acts that are "discrete acts." Mrs. Richter's case exemplifies the problems with this circuit split and evidences the growing administrative and procedural mess that is Title VII litigation.

The Richter holding is particularly problematic because it requires double litigation. It potentially leads to a logistical nightmare in which a plaintiff must concurrently navigate both the EEOC process and the civil litigation process while at the same time ensuring that the stringent statute of limitations under Title VII is not violated. This Note argues that Title VII should be amended to alleviate the unnecessary burden imposed by this new addition to the exhaustion of administrative remedies doctrine. Part I examines the framework of Title VII and its current treatment of the exhaustion of administrative remedies doctrine regarding retaliation. Part II argues that Richter and its companion decisions align logically with the statute and precedent but cause unnecessary hardships and inequity. Part III proposes amending Title VII in order to exempt post-charge retaliation from the requirement of exhaustion of administrative remedies.

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Recent court decisions have significantly weakened the viability of retaliation claims under Title VII. Courts have struggled to find a balance between adhering to the strict language of Title VII and upholding the goals and policies of the anti-discrimination statute. While requiring an aggrieved individual to file an additional charge for retaliation ensures that the EEOC has an opportunity to review and investigate all claims arising under Title VII, it incentivizes employers to retaliate against employees who file charges and discourages employees from filing additional charges of retaliation. Unfortunately for employees, such a strict adherence to the text of Title VII is a proper reading of the statute and of Supreme Court precedent. The damaging ramifications to an employee's retaliation claims, which are essential for Title VII's success, necessitate a statutory change. A statutory exception of post-charge retaliation from mandatory EEOC review would most effectively resolve this conflict. Without this statutory change, Title VII lays another significant mine to the already complex procedural minefield of employment discrimination litigation.