Professor Green Publishes Article in U. Kansas Law Review

Professor Matthew Green published a new article entitled What’s So Reasonable about Reasonableness? Rejecting a Case-Law Centered Approach to Title VII’s Reasonable Belief Doctrine in the University of Kansas Law Review (62 U. Kan. L. Rev. 759 (2014)).

The article critiques recent application of the reasonable belief doctrine under Title VII of the Civil Rights Act of 1964.  Title VII’s anti-retaliation provision, in pertinent part, provides that “it shall be an unlawful employment practice for an employer to discriminate against any of his employees … because he has opposed any practice made an unlawful employment practice [under Title VII].” Literally read, the provision requires that an employee oppose a practice Title VII actually makes unlawful. If the employee does so and is retaliated against, the statute affords the employee relief. While the U.S. courts of appeals have rejected this literal interpretation and have held that the opposition clause protects employees who complain about conduct reasonably believed to be unlawful discrimination, courts have failed to settle on a uniform standard for determining reasonableness.  Most courts require that employees demonstrate the reasonableness of a belief about the illegality of alleged discrimination in light of existing substantive law. Case law is the objective criterion on which reasonableness is based, and employees are given no leeway for error about judicial interpretations of Title VII.  The article argues that the courts have been correct to reject a literal interpretation of the opposition clause, but as a normative matter proposes a totality of the circumstances approach to assessing reasonableness.  The article also sets forth factors that courts should generally take into account in the reasonableness calculus.  The test articulated in the article is consistent with recent U.S. Supreme Court precedent interpreting Title VII, promises broader protection than the case-law approach and better effectuates the original purposes of the reasonable belief doctrine than current standards.
 
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One Response to Professor Green Publishes Article in U. Kansas Law Review

  1. Alan Jay Rom says:

    Dear Professor Green: Thank you for writing this article. Looking at reasonableness from the test of “totality of the circumstances” borrows from the application of Section 2 of the Voting Rights Act and, properly applied, is a sound way to consider the question. Sincerely, Alan Jay Rom

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