Green Opines on Purposive Opposition

Professor Matthew Green

C|M|LAW Professor Matthew W. Green, Jr. has published Express Yourself:  Striking a Balance Between Silence and Active, Purposive Opposition under Title VII’s Anti-Retaliation Provision in the Hofstra Labor and Employment Law Journal (28 Hofstra Lab. & Empl. L.J. 107 (2010). In this piece, Professor Green considers the U.S. Supreme Court’s decision in Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, in which the Court interpreted Title VII’s opposition clause.  The opposition clause bars discrimination because an employee or applicant “has opposed” an employment practice made unlawful under Title VII.   In Crawford, the Court held the term “opposition” to have an everyday meaning that includes opposition not just in action, but in opinion.  This is of particular concern because, as Justice Alito pointed out in his concurring opinion in Crawford, opposition in opinion might be found in silent opposition.  Professor Green considers and rejects the idea the Crawford should be read as opening the door to silent opposition.  He argues that Crawford did recognize that one of the meanings of the term ‘oppose’ is to be hostile to, as in an opinion.  However, as the Court stated elsewhere, ‘a word in a statute [does not necessarily] extend to the outer limits of its definitional possibilities.  This article concludes that Crawford rejected active, demanding standards for opposition conduct to be actionable, that is, that it is required for an employee to be protected by the statute.  As long as the employee expresses opposition to alleged unlawful employment discrimination that is ultimately communicated to the employer, the employer is prohibited from discriminating against the employee on the basis of that expression.  Professor Green argues that Crawford should not be interpreted to open the door to allow discrimination in cases of silent opposition.

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