The Leadership Conference on Civil and Human Rights

Volume 9 Number 1

On February 18, 1997, the Supreme Court ruled that while the term "employees" in sec-tion 704(a) of Title VII of the Civil Rights Act of 1964 is ambiguous as to whether it includes former employees, "[I]t being more consistent with the broader context of Title VII and the pri-mary purpose of section 704(a), we hold that former employees are included within section 704(a)'s coverage." The unanimous decision was written by Justice Clarence Thomas, Robinson v. Shell Oil Co., No. 95-1376. The holding revers ed the decision of the Fourth Circuit sitting en banc.

Background

Charles T. Robinson, a sales representative, was fired by Shell Oil Company in 1991. Robinson filed a complaint with the U.S. Equal Employment Opportunity Commission. While his suit was pending, he applied for a job with Metropolitan Life Insurance Comp any, and the Shell Oil Company gave him a negative employment reference. Robinson claimed the negative reference was in retaliation for his complaint and filed a second complaint with EEOC. He later sued in federal court alleging retaliatory discriminat ion.

The district court, relying on previous Fourth Circuit precedent, dismissed the complaint finding that section 704(a) of Title VII applied only to current employees and not to former em-ployees. On appeal, a divided Fourth Circuit panel reversed. A r e-hearing before the Fourth Circuit en banc was granted. The circuit sitting en banc (as a whole) vacated the panel's decision and affirmed the district court's decision. The Supreme Court granted review to resolve a conflict among the circuits.

Title VII prohibits employment discrimination based on a person's race, color, religion, sex, or national origin. The relevant part of section 704 (a) states: "It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment..."

The nine-page unanimous opinion begins with an analysis of the use of the word "employees" in the statute to determine whether there is clarity or ambiguity as to whether it includes or excludes former employees. The opinion concludes that the languag e is ambiguous: "Title VII's definition of employee lacks any temporal qualifier and is consistent with either current or past employment." Left with the ambiguity, the Justices conclude:

"Insofar as section 704(a) expressly protects employees from retaliation for filing a 'charge' under Title VII, and a charge under section 703(a) alleging unlawful discharge would necessarily be brought by a former employee, it is far more consistent to include former employees within the scope of employees protected by section 704(a).

"According to EEOC, exclusion of former employees from the protection of section 704(a) would undermine the effectiveness of Title VII by allowing the threat of post-employment retaliation to deter victims of discrimination from complaining to EEOC, an d would provide a perverse incentive for employers to fire employees who might bring Title VII claims."