Robinson v. Shell Oil Company

PETITIONER:Robinson
RESPONDENT:Shell Oil Company
LOCATION:Camp Newfound Owatonna

DOCKET NO.: 95-1376
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: United States Court of Appeals for the Fourth Circuit

CITATION: 519 US 337 (1997)
ARGUED: Nov 06, 1996
DECIDED: Feb 18, 1997

ADVOCATES:
Allen M. Lenchek – Argued the cause for the petitioner
Lawrence C. Butler – Argued the cause for the respondent
Paul R. Q. Wolfson – Department of Justice, on behalf of the United States, as amicus curiae, supporting the petitioner

Facts of the case

Charles T. Robinson, Sr., was fired by Shell Oil Co. Thereafter, Robinson filed an employment discrimination charge with the Equal Employment Opportunity Commission (EEOC) under Title VII of the Civil Rights Act of 1964. While that charge was pending, Robinson applied for a job with another company, which contacted Shell for an employment reference. Robinson, claiming that Shell gave him a negative reference in retaliation for his having filed the EEOC charge, then filed suit under Title VII, which makes it unlawful “for an employer to discriminate against any of his employees or applicants for employment” who have availed themselves of Title VII’s protections. The District Court dismissed the suit. In affirming, the en banc Court of Appeals held that the term “employees” in Title VII refers only to current employees and therefore petitioner’s claim was not justicible under Title VII.

Question

Does the term “employees,” as used in under Title VII of the Civil Rights Act of 1964, includes former employees, such that a petitioner may bring suit against his or her former employer for post-employment actions allegedly taken in retaliation for having filed a charge with the Equal Employment Opportunity Commission?

William H. Rehnquist:

We will hear argument next in No. 95-1376, Charles T. Robinson, Sr., v. Shell Oil Company.

Mr. Lenchek.

Allen M. Lenchek:

Mr. Chief Justice, and if it please the Court:

This case presents the question: Does the provision of Title VII of the 1964 Civil Rights Act that prohibits retaliation against, quote, employees, unquote, for filing charges of discrimination or otherwise availing themselves of their rights under Title VII… namely Section 704(a)… does that section cover former employees, employees such as Petitioner, Charles Robinson, who were discharged prior to the alleged retaliation?

In this case, after Charles Robinson was terminated by Shell Oil, he filed a charge of discrimination against Shell under Title VII, and subsequently, Shell gave him a negative job reference.

He then brought the present action, alleging that that negative reference was made in retaliation for his earlier charge of discrimination.

The Fourth Circuit held that Charles Robinson was not even entitled to have the court determine whether that reference was retaliatory, because he was not employed by Shell at the time of the reference.

If Shell had given him that reference the day before he was terminated, everyone agrees, he would have had that right to a judicial determination.

William H. Rehnquist:

Well, if you’re right, it’s… it’s a rather sure way to make… make sure you don’t get a bad reference; you just file a complaint with the EEOC a couple of days after… or a couple of days before you’re fired, even though the firing is completely justified.

Allen M. Lenchek:

Well, that is not, in fact, what actually happens.

William H. Rehnquist:

No, it may not be what in fact happened in your case, but it certainly might happen in a number of other cases if we sustain your position.

Or even if you’re not going to be fired, even if you just intend to quit, it would be very wise, before you quit, to file an EEOC complaint.

Because then, if… if the employer gives you a bad reference in… in your later job, he takes the risk of being sued for that, on the basis of retaliation.

He’s buying a lawsuit.

Allen M. Lenchek:

There are, in fact, disincentives to frivolous charges built into Title VII, which hopefully would take care of that problem.

John Paul Stevens:

Well, what are… what are they?

Allen M. Lenchek:

A principal brings a frivolous lawsuit under Title VII may be hit with attorney’s fees and costs.

William H. Rehnquist:

What about, are there any disincentives to filing a frivolous complaint with the EEOC?

Any similar disincentives?

Allen M. Lenchek:

There… there are… no, the EEOC can’t apply any disincentives like that.

That’s true.

But we believe that the language–

Sandra Day O’Connor:

What other remedies are available to someone who, after he’s… he’s been terminated, thinks that a reference was erroneously made and given by the former employer?

Is there any other action at law that would be open for redress?

Allen M. Lenchek:

–There are possible actions under State law.

Sandra Day O’Connor:

Right.

Allen M. Lenchek:

But it is well established that Title VII is intended to give parallel remedies to any other remedies that may be available.

We believe that the language of Title VII, and the purpose of Section 704(a), indicate that Congress intended former employer… employees… to be covered by the retaliatory section.

Section 704(a) provides that it shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment because he has opposed the charge or because he has opposed an unlawful practice or because he has made a charge or participated in an EEOC proceeding as a possible witness.

I emphasize that Section 704(a) protects an employee who has made a charge, because the substantive provision of Title VII, Section 703(a), cited in full and verbatim in the Respondent’s brief at page 14, makes it an unlawful employment practice to discharge any individual because of his race, and so on.

Allen M. Lenchek:

An individual–

Sandra Day O’Connor:

And that… that complaint was made here?

Allen M. Lenchek:

–That’s exactly what happened in this case.

Sandra Day O’Connor:

And… and the plaintiff lost?

Allen M. Lenchek:

Right.

That’s right.

Now, an employee who is discharged will necessarily file his charge of discrimination after he ceases working for that employer.

So when Congress wrote Section 704(a)–

William H. Rehnquist:

Well, he’ll file his charge if… if he claims the discharge is discriminatory?

Allen M. Lenchek:

–Yes.

William H. Rehnquist:

He could… the employee could remain employed and file a complaint that a failure to promote was discriminatory, couldn’t he?

Allen M. Lenchek:

That’s right.

But he would remain an employee, and if he were retaliated against because of that charge, he would ordinarily still be an employee and clearly be covered by the Act.

The point I want to make is that when Congress wrote this statute, it contemplated that people would file charges alleging that they were discriminatorily discharged–

Antonin Scalia:

It… it’s the time of the discrimination that… that… that’s relevant for 704(a)–

Allen M. Lenchek:

–Exactly.

Antonin Scalia:

–and the person who is fired because he filed a complaint–

Allen M. Lenchek:

Exact–

Antonin Scalia:

–was an employee at the time he was fired.

Allen M. Lenchek:

–Exactly.

Antonin Scalia:

So he would be… he would be well covered, even if “employee” means only current employee?

Allen M. Lenchek:

He would be covered by 7… 703(a).

The issue in this case is, if he’s no longer an employee at the time of the retaliation, is he covered be the statute?

Antonin Scalia:

Well–

–If he’s fired as a means of retal… if he’s either not promoted or fired–

Allen M. Lenchek:

Of course, if he’s–

Antonin Scalia:

–as a means of retaliation–

Allen M. Lenchek:

–Of course, that–

Antonin Scalia:

–he would be covered under 704(a), even if 704(a) is just limited to current employees, right?

Allen M. Lenchek:

–That’s right.

Antonin Scalia:

Okay.

Allen M. Lenchek:

That’s right.

Antonin Scalia:

So–

Allen M. Lenchek:

But the point I want to make is that Congress knew that people would be subject to retaliation under 704(a) when they were no longer employees, because there would be people who file charges alleging that they were discharged because of race and so on, and those people would necessarily be no longer employees at the time they might be retaliated against.

So Congress must have contemplated that people who would be firing… fired, would be filing charges and then might be retaliated against when they were no longer employees.

Sandra Day O’Connor:

–Well, do we have to look at the definition in the applicable section here of the word “employee”?

Is that how we should proceed?

Allen M. Lenchek:

Un… unfortunately, that definition has… this Court has said that definition doesn’t help us much–

Sandra Day O’Connor:

Well, the definition says the term “employee” means an individual employed by an employer.

And that is ambiguous in your view?

Allen M. Lenchek:

–Well, this Court–

Sandra Day O’Connor:

It could include former employees, a person employed?

Allen M. Lenchek:

–That is precisely what we’re saying.

Because, as the Court has said in Darden, that definition is a circular definition, which doesn’t help much in deciding who is an employee.

And as–

Ruth Bader Ginsburg:

–a purpose that’s not relevant in this–

Allen M. Lenchek:

–That’s right.

Ruth Bader Ginsburg:

–a traditional common-law type employee versus an independent contractor.

Allen M. Lenchek:

That–

Ruth Bader Ginsburg:

So it’s not… it’s not circular for that purpose, but it just doesn’t speak to what’s at here?

Allen M. Lenchek:

–That’s right.

But as… as Your Honor pointed out in the earlier argument, a word in a statute may have different meanings in different… different parts of the statute, and one must look at the purpose of the statute to decide what that particular meaning is in a given place in the statute.

David H. Souter:

Well, I understand it to be your position that the… circular though the… the definition may be, it is helpful to you in the sense that it is as consistent with the reading, who was employed by an employer, as with the reading, who is employed by an employer.

So… so you’re still in the game, even though the word “employed” is the modifier.

Allen M. Lenchek:

That’s right.

David H. Souter:

That’s your argument?

Allen M. Lenchek:

That is exactly right.

David H. Souter:

Yeah.

Allen M. Lenchek:

And… and in order to decide which of the multiple meanings the word “employee” has in this statute, one must look to the purpose of the statute.

And the purpose of the statute, obviously, is to protect those people who get discharged and then file charges of discrimination, and may be subject to retaliation.

Allen M. Lenchek:

And Congress clearly contemplated that those people would making charges, would be subject to retaliation, and wrote the retaliation provision, using the simple–

Antonin Scalia:

Why should Congress contemplate that?

I would… if I were a congressman, I would have had a hard time figuring out how an employer could retaliate against somebody who is no longer an employee.

He could retaliate by refusing to rehire the guy, perhaps.

But, in that case, he’s covered, because he would be an applicant for employment.

But the notion that he could retaliate once… once the employ… employment relationship is terminated… I mean, I guess he could… he could send somebody over to… to mug him or something like that, but–

–How about cutting off his pension benefits?

Allen M. Lenchek:

–That’s right.

Antonin Scalia:

Well, that… surely that would be unlawful, wouldn’t it?

Allen M. Lenchek:

No question about it; this Court has said so.

Antonin Scalia:

Well, would… would you need this Act to… to prevent his… that’s like sending somebody over to mug him.

Allen M. Lenchek:

Yes, one does need this Act.

Antonin Scalia:

You don’t have to worry about that?

You have laws against it.

Allen M. Lenchek:

Yes, one does need this Act.

In Arizona Governing Committee, which was cited in Hishon, which we cite in our case, this Court said that cutting off pension benefits or discriminating with regard to pension benefits on the basis of sex was a violation of the substantive provision of Title VII.

The reason one needs this Act is because, if an employer chose to cut off pension benefits as a retaliatory measure, and then were… was… was charged under the substantive provision of Title VII… the claim would be you cut off my pension benefits because I’m black… the employer then… if this Court upholds the Fourth Circuit… could come in and use the fact that it was motivated by retaliation as an affirmative defense to the charge that it was motivated by sex or race.

If this Court upholds the Fourth Circuit, an employer will have carte blanche to retaliate against discharged employees.

As a matter of fact–

Anthony M. Kennedy:

I’m not sure… I’m not sure, in the context of a pension or a bonus, that there is not a sufficient ongoing relation, so that the discrimination that you are hypothesizing would be against an employee, even though the employee has been terminated.

I think there still are certain subsisting relations between the… the individual and the employer, one of which is entitlements to pension, which would mean that he’s an employee for that purpose.

Allen M. Lenchek:

–Yes, Justice Kennedy, that’s right.

That would take care of… of that one particular class.

But there’s a broader class that would not be covered if this Court upheld the Fourth Circuit.

And that is all those people who have no remaining relationship with that employer.

And if the Court upholds the Fourth Circuit–

Anthony M. Kennedy:

I… I was… I was just directing my… my comments to the pension and bonus example.

But I… I agree with your next point that you–

Allen M. Lenchek:

–Yes.

But consider… consider what Shell Oil or any employer could do if this Court upholds the Fourth Circuit.

Allen M. Lenchek:

The day after this Court hands down its decision, Shell Oil could announce a policy that any terminated employee who then later files a charge of discrimination against the company will be subject to retaliation.

We will retaliate against you.

We will cut off your pension, if you have one.

We will cut off your health benefits, if you have–

Antonin Scalia:

–And it wouldn’t violate this law?

Allen M. Lenchek:

–And it would not violate–

William H. Rehnquist:

But–

–But it would violate other laws, though?

Allen M. Lenchek:

–Maybe not.

Maybe not.

William H. Rehnquist:

Well, you know, if a person has a vested pension and he’s dismissed by an employer–

Allen M. Lenchek:

That’s right.

William H. Rehnquist:

–there is no law that protects his enjoyment of that pension?

Allen M. Lenchek:

That is absolutely right.

But there is… that person–

William H. Rehnquist:

Well, I mean, I said… and there… there’s no law that protects his–

Allen M. Lenchek:

–Yes, there is.

Of course, ERISA would protect him.

William H. Rehnquist:

–Yeah.

Allen M. Lenchek:

But there would be no cause of action against the employer who announced a policy of simply, we will not give you any reference–

Anthony M. Kennedy:

But I–

Allen M. Lenchek:

–and we will not even acknowledge you worked for us.

Anthony M. Kennedy:

–I thought in my earlier… I thought in our earlier colloquy that we just had that you agreed that in the pension and bonus example–

Allen M. Lenchek:

Yes.

Anthony M. Kennedy:

–the terminated individual would have a sufficient nexus–

Allen M. Lenchek:

Yes.

Anthony M. Kennedy:

–for the purpose of pension, to be an employee, even under the Respondent’s view?

Allen M. Lenchek:

Right.

Anthony M. Kennedy:

All right.

Allen M. Lenchek:

But–

Anthony M. Kennedy:

So, then, I don’t think we should talk about employers who are going to threaten former employees with cutting off their pensions.

Because I thought we just agreed that that wasn’t… wasn’t a problem.

Allen M. Lenchek:

–Well, he could threaten not to give any reference–

John Paul Stevens:

Yeah, but can you speak for the… can you speak for the Respondent on that issue?

The Respondent’s literal, plain language argument, it seems to me, applies there as well as here.

How… how do you know the Respondent will agree with Justice Kennedy’s suggestion?

I don’t think you have authority to say that.

Allen M. Lenchek:

–No, I… I’d like to reserve the balance of my time.

Anthony M. Kennedy:

Well, but… but it… but it is certainly within the purview of a logical construction of his position?

Allen M. Lenchek:

I… I’ll… I’ll leave that for Respondent to answer.

William H. Rehnquist:

Very well.

Very well, Mr. Lenchek.

You’ll let Justice Stevens and Justice Kennedy fight that out between themselves is what you mean?

[Laughter]

Mr. Wolfson.

We’ll hear from you Mr. Wolfson.

Paul R. Q. Wolfson:

Mr. Chief Justice, and may it please the Court:

Under the Court of Appeals reading of Section 704(a), any employee who was discharged and who went to the EEOC with a complaint of discrimination would lack protection against his former employer for… for… against retaliation by his former employer.

I want to focus for a minute on why that seems just to be implausible that Congress would have carved out such a large category of employees from the reach of Section 704, especially since discharged employees are probably among the… the category of employees that are really–

William H. Rehnquist:

If we are talking about what Congress might have intended, do you think Congress really intended that an action could be brought against an employer who makes a reference for a person after… after he’s been discharged?

Do you think that was what Congress had in mind when it talked about retaliation against an employee?

Paul R. Q. Wolfson:

–Well, I… I mean, I… I think that–

William H. Rehnquist:

Do… do you?

Paul R. Q. Wolfson:

–I… I think that’s… that is quite a possible reach within Section 704.

One of the things I want to focus is that–

William H. Rehnquist:

Well, I mean… but you’re talking about what did Congress intend.

Do you think that was what Congress had in mind?

Paul R. Q. Wolfson:

–Congress… Congress made Section 704 very… a very clear and strong protection against retaliation.

And I can’t say that it focussed specifically on the issue of references, but it did know that it was very necessary for employees to be able to approach the EEOC without fear of adverse economic consequences from their employer for doing so.

Because the–

William H. Rehnquist:

Well, what… what if, in this case, the… the thing… the request for references came 10 years–

Paul R. Q. Wolfson:

–I… I… I’m aware of that hypothetical.

I have to… first of all, I have to say that that hypothetical is not within the EEOC’s experience, that that… that that happens.

Secondly, I think that that is really a very remote situation, and it has to be contrasted with the very realistic situation, where somebody goes to the EEOC and, very quickly after that, suffers retaliation.

To focus on–

William H. Rehnquist:

–Well, but… we’re… we’re going to… we’re going to have to cover them both, I gather–

Paul R. Q. Wolfson:

–Well, I… I… I–

William H. Rehnquist:

–either to not cover them both or cover them both.

Paul R. Q. Wolfson:

–I… I acknowledge, Mr. Chief Justice, that that could plausibly come within the… within the reach of the statute, under Section 704.

But, I have to say, I think that is a remote danger.

I want to focus on a point that Justice Kennedy–

Antonin Scalia:

Suppose… never mind that… suppose the retaliation comes not from the employer but from the… the individual employee, and not within the scope of the business at all… whom the… whom the… the complainant charged with discrimination.

Paul R. Q. Wolfson:

–I–

Antonin Scalia:

That individual goes in the… scratches his car or slashes his tires or… or destroys his home or something of that–

Paul R. Q. Wolfson:

–Right.

Antonin Scalia:

–Would that be covered by this?

Paul R. Q. Wolfson:

Two… two points.

I mean, first of all–

Antonin Scalia:

Would… would that be covered by the Act?

Paul R. Q. Wolfson:

–Not necessarily.

Antonin Scalia:

So, not at all?

Paul R. Q. Wolfson:

Well, it… it has to be an employer, first of all, who is… through a Section 704–

Antonin Scalia:

Okay.

So… so you acknowledge there are some limitations within the Act upon retaliation?

Paul R. Q. Wolfson:

–Yes.

Antonin Scalia:

Not all retaliation is meant to be protected?

Paul R. Q. Wolfson:

It–

Antonin Scalia:

So all we’re arguing about is whether one of the limitations is a limitation between present employer and former employer.

Paul R. Q. Wolfson:

–Right, present employer and… and former employer.

And… but it’s not… but it isn’t just references that… that is at issue.

Paul R. Q. Wolfson:

I mean, Justice Kennedy had a colloquy… a colloquy earlier about the… the… the problem of pension benefits.

Contesting an unemployment claim is a situation that you would… might see.

And the Court, in the sixties, had a case called Nash against Florida Unemployment Commission, where it said that, under the NLRA, that contesting an unemployment claim could be prohibited retaliation under the National Labor Relations Act.

And that, I think, is a… a situation that one might very well expect to see.

Somebody quits or is fired, believes that he was discharged, went to the EEOC, filed an unemployment claim, and, immediately thereafter, the employer decides, well, this one we’ll contest, even though most unemployment claims for compensation we let go because it isn’t worth it, because we’re just… we’re mad at the employee for filing a claim of discrimination.

And references are also, I think, a situation where an employee might very well find that he receives an adverse reference or he receives no reference in all… at all… an employee… an employer might normally have a practice of saying, well, we… we say reasonably nice things about our employees once they’ve gone, but… but did he… because this one has filed a discrimination charge, this one, if we get any requests for a reference, we’re just going to pitch the request in the bin and not say anything at… at all.

That could be–

Antonin Scalia:

I don’t know why you’d give any references if there is even the slightest risk of your being sued for it.

I don’t know why you’d give… why… why would an employer give any references?

What… what is there in it for him, if… if there’s a… a possible liability attached?

Paul R. Q. Wolfson:

–Well, I mean, first of all, the… the fact is that employers still do give references.

The second–

Anthony M. Kennedy:

Well… well, isn’t… isn’t the answer going to be what you’ve just said… that if he doesn’t, under your view of the case, it’s going to be retaliation, too?

Paul R. Q. Wolfson:

–Well, it’s only… it’s only–

Anthony M. Kennedy:

He must… he must… he must give a reference?

Paul R. Q. Wolfson:

–It’s only retaliation if he treats people differently.

I mean, the Section 704 is… is discrimination against an employee because he has filed a charge with the EEOC.

John Paul Stevens:

But, Mr. Wolfson–

Paul R. Q. Wolfson:

And it is certainly the employee’s burden to show that there was… there was a different approach taken in his case and that it was caused by–

John Paul Stevens:

–But, Mr. Wolfson, may I ask you a question right there?

One of the troubling things about the case is, even assuming a former employee may be an employee within the meaning of the statute, can file a charge and so forth, is it clear that the employer can discriminate against a former employee?

Why is it discrimination?

Paul R. Q. Wolfson:

–Well, it doesn’t say… the statute doesn’t say specifically… 704, unlike 703, doesn’t say discrimination in the terms, conditions or privileges of employment.

It just says discrimination.

But I would… but even if… even if that’s not the case, I certainly would think that failing to give a reference or giving an adverse reference… if… if a reference is under the normal course of what an employer does for his employees once the employees leave the… leave the company… if that… if an employer decides, for one employee, because he’s filed an EEO charge, I’m going to treat him differently–

John Paul Stevens:

Yeah, but their policy assumes to tell the truth in all… in all… you know, whether they like the employee or not, they say, we didn’t like this guy… that’s discrimination?

Paul R. Q. Wolfson:

–It… it’s only discrimination if it… if it is effected by the retaliation.

That is to say, if they say–

Ruth Bader Ginsburg:

Mr. Wolfson, wouldn’t this play out in how… suppose this case had gone to court.

The employer says, We gave an honest reference.

Ruth Bader Ginsburg:

The plaintiff is then out of court unless the plaintiff shows that’s a pretext, right?

Paul R. Q. Wolfson:

–Well–

Ruth Bader Ginsburg:

That’s a… that’s a legitimate nonretaliatory reason.

Paul R. Q. Wolfson:

–It could be the… the allegation in this case, of course, is that the… the… and it’s… the complaint is reprinted in the joint appendix… the allegation in this case is that the reference was false, in fact, and that it was motivated by… by retaliation.

I want to talk about the word “employee”–

Antonin Scalia:

I assume… I assume that the… that the employer cannot protect himself when he gets a request for a reference by simply saying, you know, I do normally give references, but I’m sorry, in the case of this employee, I don’t want to say anything either good or bad, because he had filed a complaint and I’m worried about being prosecuted.

You would say that that is discrimination–

Paul R. Q. Wolfson:

–Yes.

Yes.

Antonin Scalia:

–not giving a reference either way?

Paul R. Q. Wolfson:

Certainly, if… if… if referring to the fact that that… that he’s filed an EEOC charge.

One thing–

Antonin Scalia:

So… so the only way for the employer to be sure that he… that he won’t be sued is not to give any references for any employees?

Paul R. Q. Wolfson:

–Well, not to treat any employee differently–

Antonin Scalia:

Yeah.

Paul R. Q. Wolfson:

–on the… on… not to affect a reference because the employee filed an EEOC charge.

One of the things, though, is that this… this is something that it doesn’t really turn on just former… it doesn’t turn on former and current employees.

That is, the lower court says… it pointed out that giving someone an adverse reference as retaliation for filing an EEO charge is some… something that a current employee could bring also.

So it doesn’t… whatever problems there may be with what is retaliation, and is giving an adverse reference, you know, quote, you know, discrimination, or is it in… as retaliation?

It… it doesn’t… it’s not directly addressed to the analytical question in this case.

And I don’t think the Court has to reach any of the… the specific, difficult issue… the difficult issues that might arise on any specific factual circumstances about, you know, would a bad reference be a retaliation in a particular case?

Turning to the question of employee, our position is that employee is… is susceptible of… of two meanings, and one… and certainly including former employee.

And ordinary usage or common usage of the word bears that out.

One could say that he gives his employees good references and… in that… in that situation, the speaker would certainly be–

Ruth Bader Ginsburg:

Mr. Wolfson, I just want to make sure I understood the point you made before.

You are saying, commonly, people know that they’re on their way out, and so they start looking around for a job earlier.

So, the… exactly, the employer is… faces the same problem with respect to references for people who are currently on the work force, but they didn’t get the promotion, so they’re just biding their time till they get a new job.

Paul R. Q. Wolfson:

–Right.

Ruth Bader Ginsburg:

Exactly the same problem for the employer.

But doesn’t the–

Paul R. Q. Wolfson:

But nobody suggests that that’s not covered by Title VII.

Ruth Bader Ginsburg:

–Right.

Paul R. Q. Wolfson:

At least–

Ruth Bader Ginsburg:

But if… if the interpretation that you are opposing were the law, then the message to the employer is, don’t keep that person on and give him time to look for another job; get rid of him.

Because as soon as he’s a nonemployee, then he has nothing that he can do.

Paul R. Q. Wolfson:

–Well, I… I… I think it’s… the result you point is… is… and this was pointed out, I believe, in the… in the dissenting opinion below… that that’s one of the anomalies of that construction, which is it encourages–

William H. Rehnquist:

I don’t think that was a question, Mr. Lenchek.

Your time has expired.

Not Mr. Lenchek… Mr. Wolfson.

Mr. Butler, we’ll hear from you.

Lawrence C. Butler:

Mr. Chief Justice, and may it please the Court:

This is a case involving statutory interpretation.

Any case involving the proper interpretation of a statute must begin by examining the statutory language.

Ruth Bader Ginsburg:

Don’t you think that language in the definition section can be read two ways?

Lawrence C. Butler:

No, I don’t, Your Honor.

Sandra Day O’Connor:

“Employed”?

Lawrence C. Butler:

No, I don’t.

Nor do I think that the definition of employee within Title VII is a total tautology.

It does serve a purpose: to distinguish between individuals and employees.

I think that that distinction between the two is very apparent when you look at Section 703.

If you look at Section 703(a), which is at page 14 of my brief, you can see that “employee”, or “employment”, is a status that is obtained by an individual.

Sandra Day O’Connor:

Well, but Title VII authorizes courts to order reinstatement or hiring of employees.

Now, that has to include former employees.

Lawrence C. Butler:

Yes, but I… I think you get back to what Justice Scalia pointed out: If there is an event, a discriminatory event that occurs, then you look at the event and the status of the individual at the time the event occurred.

And certainly, if an employer fires someone–

John Paul Stevens:

Yes, but not if the statute doesn’t say that.

On filing charges, it says an employee may file a charge.

Lawrence C. Butler:

–That’s true.

That’s right.

John Paul Stevens:

And even though he’s a former employee.

Lawrence C. Butler:

Yeah, but I think you do have to look at the distinction between alleging discrimination under 703 and retaliation under 704, because they are not coextensive.

John Paul Stevens:

There has been–

–How do you resolve the… excuse me–

–Go ahead.

How do you resolve the debate between Justice Kennedy and me?

Is an… is a retired employee who’s getting a pension still an employee?

Lawrence C. Butler:

No.

John Paul Stevens:

So you agree with me?

Lawrence C. Butler:

I… I do agree with you, Justice Scalia.

[Laughter]

With all due respect.

John Paul Stevens:

Even if you lose the case?

[Laughter]

Lawrence C. Butler:

I would hope not, Justice Kennedy.

But I do not agree that a person can be an employee for the purposes of some benefits and not others.

I think that that is a line drawing that is not justified by the statute.

The statute talks in terms of employment, and I think that is a bright line.

I think–

Ruth Bader Ginsburg:

But you’ve already… you’ve already acknowledged that the word “employee”, the word “employee”, in this very statute, means former employee in a number of contexts.

One, the time you have to file a charge.

It uses the word “employee”, right?

It doesn’t say “former employee”.

It just says “employee”, but obviously it’s talking about former employee.

Lawrence C. Butler:

–Well, I would disagree, only to state, Justice Ginsburg, that, at the time the charge is filed, the status is irrelevant.

It is the time of the retaliatory act or the time of dis… discrimination.

Ruth Bader Ginsburg:

But the… the statute uses the word “employee”.

Lawrence C. Butler:

Yes.

Ruth Bader Ginsburg:

The statute uses the word “employee” to describe an individual–

Lawrence C. Butler:

Yes.

Ruth Bader Ginsburg:

–who happens to be a former employee.

Ruth Bader Ginsburg:

But the statute identifies that individual as “employee”, and everybody knows that “employee”… the word “employee”, in that statute, means former employee.

Lawrence C. Butler:

I… I disagree with the construction, because I do think it depends on when you have to identify the employee.

Now, the words are the same.

It is used the same.

But I would add something else, Justice Ginsburg–

Ruth Bader Ginsburg:

When the statute says an employee may file a charge within X number of days–

Lawrence C. Butler:

–Right.

Ruth Bader Ginsburg:

–does that word “employee” mean current employee and former employee?

Lawrence C. Butler:

It can mean either… it can mean an employee at the time the event occurred.

Also, under 703–

David H. Souter:

Yeah, but the person who’s filling out the form, at the time he fills out the form is what the statute is talking about.

And at the time he fills out the form, he’s not an employee; isn’t that correct?

Lawrence C. Butler:

–That… that’s right, at the time he fills out the form.

But are we under 703 or 704?

Antonin Scalia:

But that’s a different argument.

And I don’t know why you don’t make that argument, that… that it can mean other things in… in other contexts, but in this context it doesn’t.

I really think you’re taking on a terrible burden, to say that it always and everywhere means a current employee.

It quite obviously doesn’t.

Lawrence C. Butler:

Your Honor, I do accept that argument.

But I would point out there is an additional word that I think does bear looking at under Section 704.

Employers are told that they are responsible for his employees.

And I think if you go… if you take the common usage of that term and you go to any employer in this country, and you say, for whatever purpose, you’re responsible for your employees… his employees… no one is going to assume that, well, gee, I guess that means I’m responsible for Joe Blow who works for me–

Antonin Scalia:

What you’re saying is that the normal meaning is a current employer–

Lawrence C. Butler:

–Exactly.

Antonin Scalia:

–although, in some contexts, it’s… it can be used differently.

That’s unusual, but–

Lawrence C. Butler:

Certainly.

Antonin Scalia:

–in some contexts, you… you have to understand that it… it’s being used differently.

Lawrence C. Butler:

That’s right.

And–

Antonin Scalia:

And you say this is just the normal context?

Lawrence C. Butler:

–That’s correct.

That’s correct.

There is no reason not to accept the normal construction of the word 704.

John Paul Stevens:

Mr. Butler, I… I know there’s an answer to this, and I’m really asking you for help on it.

In 704 that’s quoted on page 4 of your text, there’s also reference to discriminating against any individual.

Lawrence C. Butler:

That’s right.

John Paul Stevens:

Why–

Lawrence C. Butler:

That’s because if you look at who that–

John Paul Stevens:

–That can’t be right.

Lawrence C. Butler:

–affects, the “individual” language is used for employment agencies.

So if an employment agency… I’m sorry, I’m looking at 703–

John Paul Stevens:

You mean, it refers back… it says for–

Lawrence C. Butler:

–Yeah, I’m sorry.

Right.

It… it… it does relate to employment agencies, joint labor management committees.

Well, certainly the person would not be an employee of the agency or the labor management committee or other training programs.

That’s why they have to use the word “individual” there.

But I think it’s telling that they didn’t use “individual” throughout.

Antonin Scalia:

–Well, it’s not all that telling.

Because “individual” is a lot broader than “present and former employee”.

Lawrence C. Butler:

Yes.

Antonin Scalia:

I mean, you can… you could want “employee” to include former employees without wishing it to include everybody in the world, former employee or not.

Lawrence C. Butler:

That’s… that’s certainly true.

And I think the point there is that it demonstrates that 704 is a narrowly constructed statute.

It is not even–

Ruth Bader Ginsburg:

Mr. Butler, would it cover a case where an applicant… an employee… current employee… doesn’t get the promotion and is… stays on the payroll, continues to work, but is looking for another job; in the course of that job search, gets a reference which that employee says is retaliatory?

Such a person would have both the discrimination claim, the 703 claim and the retaliation claim, right?

Lawrence C. Butler:

–That’s right.

Ruth Bader Ginsburg:

It may be a baseless claim, it may be a frivolous claim, but he has it?

Lawrence C. Butler:

That’s correct.

Ruth Bader Ginsburg:

So, now, let me go back to the question that I was putting before to Mr. Wolfson.

Doesn’t that scenario mean that the employer, once he doesn’t give the promotion to this person, should say, And you’re out, because if the employer keeps the person on for any interval, then the employer is subject to retaliation charge; but the employer can insulate the company from any retaliation charge by saying, if we don’t promote this person, they’re out the door… we don’t keep them on?

Lawrence C. Butler:

I would… I would agree with you to this extent: That once the employment is over, yes, 704 does not apply.

If the employment relationship is ongoing, yes, it does apply.

Ruth Bader Ginsburg:

So the incentive for the employer, of your reading, is get rid of the person?

Lawrence C. Butler:

Yeah.

Ruth Bader Ginsburg:

Then we insulate ourself, at least from the retaliation charge?

Lawrence C. Butler:

To the extent an employer is motivated by a desire to give negative references, I’d agree with that.

But that’s a little–

Antonin Scalia:

Well, he doesn’t have to fire him.

He could just… he could just tell him, I’ll… I’ll write you a letter but… but not now.

My policy is to write reference letters after you’ve left the company.

Lawrence C. Butler:

–Sure.

Antonin Scalia:

That… that would handle the problem, wouldn’t it?

You don’t have to fire him; just say, I… I don’t give any reference letters for anybody while you’re still employed here.

Lawrence C. Butler:

That’s correct.

I do think that the statute does contain a bright-line test.

And that bright line is whether or not you have an employment relationship.

I listened with great interest to the case that was argued just before mine.

And what interested me was not whether or not the Court decides between the payroll plan or the day-by-day plan and counting the number of employees, but the fact that each of the speakers in this morning’s argument said that, at least to be an employee under that section of the statute, you had to have an ongoing employment relationship.

And I couldn’t agree more.

You cannot have an ongoing employment relationship… and if you do not have an ongoing employment relationship, I don’t see how you can be covered by the statute.

William H. Rehnquist:

But, of course, there, in… in the previous case, the test was whether a small employer is covered.

And that’s probably a narrower definition of “employee” than someone who is entitled to sue under… under the Act.

Lawrence C. Butler:

That’s certainly true.

But I do think that it… it’s a strained argument to suggest that “employee” means different things in different places within the Act.

And to… for the EEOC to insist–

David H. Souter:

Yeah, but you’ve just admitted that.

I mean, in response to Justice Scalia’s attempt to help you out, you said, Well, yeah, that’s right; I’d accept that argument.

David H. Souter:

You’re… you’re not going to… you’re not going to kick him now, are you?

[Laughter]

Lawrence C. Butler:

–Perhaps I should have accepted his help.

[Laughter]

But I think that the test that has been established–

John Paul Stevens:

You’re sowing all sorts of dissension in the Court here, you know.

[Laughter]

Lawrence C. Butler:

–I think the test that has been established does make some sense… not that I’m trying to divine the will of Congress from 32 years ago.

I don’t think any of us can do that.

But the point that you brought up, Justice O’Connor, about there being other remedies available under common law, is certainly true in this instance in particular.

And in fact, it seems to be a burgeoning area of the law for the States to enact employment reference statutes that protect both the employee and an ability to get an employment reference and the employer, to protect them against frivolous claims.

Ruth Bader Ginsburg:

Mr. Butler, assuming… and I think we would all recognize that your interpretation is a reasonable one.

If one also thinks that the EEOC’s interpretation is a reasonable one, without giving any undue deference, shouldn’t the Court respect the agency that is administering the statute day in and day out?

Lawrence C. Butler:

Well, I would disagree in this case certainly, Your Honor.

I think that the reason for that is because the EEOC position, the petitioner’s position, is not supported by the statutory language.

I mean, it’s all well and good to speak about the policies and purposes of the Act, but Congress doesn’t pass declarations of policy.

It doesn’t pass resolutions of purpose.

It passes statutes.

And we have to read the statute to see what it is they wanted to do.

Sandra Day O’Connor:

But the word “employed by” can mean past tense or present, I suppose?

Lawrence C. Butler:

If you want to look at it from a linguist’s standpoint, I think that’s absolutely true.

But statutes aren’t passed for linguists; they’re passed for ordinary citizens.

And if we accept–

Sandra Day O’Connor:

Well, I don’t know.

This Court gets pretty picky sometimes about what language–

[Laughter]

Lawrence C. Butler:

–I think if you… if you try to analyze the language into whether it’s active or passive voice, and whether it’s past or present tense, you completely lose sight of what any ordinary individual would read when they read 704… that an employer cannot do certain things to his employees.

John Paul Stevens:

Yes.

But if you go back to the… if you go back to the pension example, there are some pension plans that allow disability benefits or, say, benefits based on length of service and so forth.

And the disability plans will often require a medical examination to qualify for that particular benefit.

John Paul Stevens:

And you’re suggesting that the company could say to the doctor, black former employees, find them not disabled, but doctors, of others employees, they could.

And that doesn’t seem likely to fit into the scheme of the statute.

Lawrence C. Butler:

I… I would say it would be highly illegal, but not necessarily under this Act.

I think it would–

John Paul Stevens:

What act would it violate?

Lawrence C. Butler:

–ERISA.

You couldn’t get away with it.

John Paul Stevens:

Oh, I see.

All right.

But this, of course, came before ERISA.

Lawrence C. Butler:

That’s true.

John Paul Stevens:

It would have been… it would have been perfectly lawful until ERISA was passed.

Lawrence C. Butler:

Well, we–

Antonin Scalia:

Indeed, you say, that’s why they passed ERISA, right, to bag that guy?

Lawrence C. Butler:

–Exactly.

You took the words right out of my mouth.

[Laughter]

John Paul Stevens:

You only find that out if you go into the legislative history of ERISA… and… and great doubts.

[Laughter]

Lawrence C. Butler:

I find the statute, alone, impenetrable, so the legislative history, I doubt it’d be any help.

I would conclude, Your Honor, by suggesting that a strained interpretation or, in fact, really, a rewording of 704 is what the petitioner is asking for… to include terms that were not included when this Act was passed 32 years ago.

And if you do that, then you will lead to absurd results.

It will create is disincentive for employers to ever issue any reference.

They’d either issue no references, all good references, or all bad references.

Because if they do anything else, they’re setting themselves up for a claim of retaliation by anyone who had previously filed a charge, valid or not.

Antonin Scalia:

That’s true.

But as… as… as Justice Ginsburg points out, that problem isn’t… isn’t entirely solved by how we come out on this case.

Because you do have the problem of references for current employees.

And… and you do subject yourself–

Lawrence C. Butler:

That’s crue.

Antonin Scalia:

–to a problem there.

Lawrence C. Butler:

That’s true.

As long as you can prove that the issuance of a reference is a benefit of employment, yes, you do have that problem.

Antonin Scalia:

No, you don’t even have to show that.

If it’s a retal… retaliatory–

Lawrence C. Butler:

Oh, yeah.

Antonin Scalia:

–It doesn’t… doesn’t have to be a term or condition.

Lawrence C. Butler:

I agree.

That’s right.

You can do that.

Ruth Bader Ginsburg:

And so the… the… the problem that you brought up, which is a real one, about truthfulness in performance ratings and the remedy for that, do you make a false representation… all of that is just the same if you give the reference before the person leaves your employ.

So you don’t… so you’re putting out that this is a problem… yes, it’s a problem, but the problem doesn’t depend upon whether former employees are covered.

The problem exists for current employees.

Lawrence C. Butler:

Well–

Ruth Bader Ginsburg:

It’s a not a reason to reject inclusion of former employees.

Lawrence C. Butler:

–Well, timing is everything.

And under the Act, the time of the Act is important to determine the status.

And the Act does offer more protection to people who are employed to those who are not employed.

And I think that that is consistent with the purposes of the Act, such as we can divine from what they… they wrote.

Because the Act was not meant to be a bad acts law.

It was not designed to cure all forms of discrimination–

Ruth Bader Ginsburg:

Well, your answer to me does say, then, for whatever reason, employers, you are home free by discharging someone; you will not be by keeping… keeping that person–

Lawrence C. Butler:

–Well–

Ruth Bader Ginsburg:

–in the current position, where the person is doing okay?

Lawrence C. Butler:

–I would hesitate to say “home free”, only because there are other acts, other statutes, other causes of actions–

Ruth Bader Ginsburg:

At least for purposes of Title VII.

Lawrence C. Butler:

–Yeah, for–

Ruth Bader Ginsburg:

For purposes of the retaliation section.

Lawrence C. Butler:

–For the… yes, for… if you narrow it down to the purposes of 704(a), yeah, I agree with you.

But there are other acts and laws that would have to come into play.

Lawrence C. Butler:

It would be very foolish for an employer to retaliate against anyone.

Antonin Scalia:

Mr. Butler, it just occurs to me, is it entirely clear that the… the phrase,

“to discriminate against any of his employees. “

is… is cut apart from… with respect to terms or conditions of employment?

I mean, suppose I run a very small business and… and somebody… what happens is what happens here… somebody files a… a discrimination complaint that is totally groundless.

I don’t fire the individual, because I’m… I’m afraid that that’ll be considered retaliation.

However, I used to have other members of… or other employees home for dinner with my wife and me with some frequency, and I no longer invite this fellow, because I don’t like him anymore–

Lawrence C. Butler:

Right.

Antonin Scalia:

–because he filed this frivolous complaint.

Is that covered by this?

Lawrence C. Butler:

Well, if he’s no longer employed, my–

Antonin Scalia:

No, no, he’s still employed.

Lawrence C. Butler:

–Yeah, oh–

Antonin Scalia:

He’s still employed.

I mean–

Lawrence C. Butler:

–I see.

I see what you’re saying.

No–

Antonin Scalia:

–You see–

Lawrence C. Butler:

–I… I don’t think he is.

Because… and I think the… the circuit courts that have tried to address that type of question have… have retreated into language about it being reasonably related to the employment.

Antonin Scalia:

–Reasonably related to the employment.

Lawrence C. Butler:

Right.

William H. Rehnquist:

Mr. Butler, does the Act itself, does it use the word “retaliate”?

Lawrence C. Butler:

No, actually, it does not–

William H. Rehnquist:

So why are we talking about retaliation?

Lawrence C. Butler:

–It’s a shorthand term.

It says discriminate on the basis of having made a charge, participated in a investigation or proceeding.

And that’s just a shorthand term.

William H. Rehnquist:

Well, what if the employer treats everybody alike who has made a charge, he retaliates against them all?

William H. Rehnquist:

[Laughter]

Lawrence C. Butler:

Well, the argument on the other side, Your Honor, would be that he’s treating them differently than the people who have not made charges.

And, in that sense, it’s discrimination.

William H. Rehnquist:

But it is… it’s a… it’s a short… “retaliate” is a shorthand form for the statutory language?

Lawrence C. Butler:

Exactly right.

The words VII, so it is… it’s different.

You know, you don’t need to look any further than the facts of this case to see what types of results can accrue.

Because we have tried the discrimination case.

And as part of the discrimination case, we had to prove… I had to put on evidence that showed all of the events that form the basis for the discharge.

John Paul Stevens:

But wouldn’t that evidence also show that you’re… the discrimination charge has no merit?

Lawrence C. Butler:

Absolutely.

And that’s what Justice Motts… Judge Motts, in Baltimore, ruled, that there was no discrimination.

We put on that evidence and, in effect, proved the reasons for discharging the individual.

And yet, truth is no defense–

Antonin Scalia:

And then set forth those same reasons in the reference to the new employer?

Lawrence C. Butler:

–They are the basis for the reference, yes.

Antonin Scalia:

The same… the same reasons that had been affirmed in litigation?

Lawrence C. Butler:

That’s correct.

And there’s nothing in the reference that says that the man filed a charge of discrimination.

We simply–

Sandra Day O’Connor:

But since… since the language relied on is the same… you refer to discrimination… is that not the law of the case now, or–

Lawrence C. Butler:

–No it wouldn’t be, Your Honor.

Sandra Day O’Connor:

–binding?

Lawrence C. Butler:

It wouldn’t be, Your Honor, because of it being two different statutes, and each statute has a separate basis for discrimination.

Not discrimination on the basis of sex or religion or national origin, but, rather, discrimination on the basis of having filed a charge or participated in a proceeding.

Now, but I do think that I’d be entitled to collateral estoppel effect for the evidence that was put on, on the events themselves that led to the discharge.

Well, those events were the basis for giving a bad employment reference.

You know, it’s not like Title VII ignores what happens to people after they lose their employment.

Ruth Bader Ginsburg:

Well, nobody is disagreeing with that.

I think the EEOC would agree with you that… that you have a very strong defense to this claim.

Lawrence C. Butler:

Well, I think so.

Ruth Bader Ginsburg:

The question is whether you have to defend.

Lawrence C. Butler:

I… I think so.

But I don’t think I should even have to put that evidence on twice.

I’ve tried this case once.

I don’t think I should have to try it again, because he’s not covered by the statute.

Ruth Bader Ginsburg:

I go back to my question about how much of a trial is involved.

Don’t you… aren’t you a situation of getting summary judgment just by putting in the… the… the result of the prior trial, and then, the plaintiff has to… has a pretty heavy burden to overcome.

If he can’t do anything, to say it was all a pretext or whatever.

The… that plaintiff would never get to trial on a case like this, would they?

Lawrence C. Butler:

No, I wouldn’t think so.

And that would have been the motion I filed if my motion to dismiss hadn’t been granted.

Antonin Scalia:

Well, I don’t know.

Why couldn’t he put on the fact that you… you, the employer… had some very mean things to say about him after this complaint was filed, and after you were vindicated in court, and you said, that… you know, that son of a gun, we got him.

And he is an odious and hateful person.

All right.

And… and… and this is all put on the record.

And the allegation to be made would be, oh, yes, there were good reasons for the bad recommendation.

Lawrence C. Butler:

Yes.

Antonin Scalia:

But, in fact, the motive here… the truth isn’t a defense, is it?

If… if the… if the motive is retaliatory–

Lawrence C. Butler:

You’re exactly right.

Antonin Scalia:

–it doesn’t matter that what you say is true?

Lawrence C. Butler:

That’s right.

Antonin Scalia:

So you have to convince a jury that this is not only true, but that the real reason you wrote that letter was… was what… I don’t know… to be helpful to the new employer, rather than to retaliate against this fellow you’ve called hateful and odious?

Lawrence C. Butler:

Exactly right.

No; it would take additional evidence, other than what was put on–

Antonin Scalia:

And the jury might not believe you?

Lawrence C. Butler:

–That’s true.

That’s true.

Lawrence C. Butler:

So, you know, even though we have proved the truth of the underlying basis, that truth forms no defense, absolute, against a claim of retaliation under 704(a).

So we’re left with having told the truth about a former employee, and yet, find ourselves accused of retaliation under 704.

Antonin Scalia:

Indeed, if truth were a defense, this retaliatory cause of action would… would give this particular plaintiff no… no… no more benefit than would the normal libel law?

Lawrence C. Butler:

Exactly.

It would… it would be pretty much the same as any defamation action in any State.

But, you know, I wanted to point out that 704–

Clarence Thomas:

Mr. Butler… Mr. Butler, may I ask you one question?

Lawrence C. Butler:

–Sir?

Clarence Thomas:

How often do you give references in discharge cases?

Lawrence C. Butler:

In discharge cases?

Quite often.

They do give references.

Clarence Thomas:

In discharge cases?

Lawrence C. Butler:

Where it’s discharge for cause?

Yes.

Clarence Thomas:

Yeah.

Lawrence C. Butler:

Even at that, we will–

Clarence Thomas:

And your solution for your case is… is a solution that will also preclude a claim in a case in which someone says… the employer says, Look, you file a charge against me, and I will see to it that you will never work in this business again?

Lawrence C. Butler:

–Your Honor–

Clarence Thomas:

So it’s not… it’s… well, what I’m getting at is that it is not just the frivolous case, the frivolous charge in your case, the reference, but it is also an instance in which an employer says you will absolutely never work in this business again?

It precludes that?

Lawrence C. Butler:

–It precludes any claim of retaliation by someone, after they’ve dis… been discharged, whether it’s frivolous or whether it’s serious.

Clarence Thomas:

Okay.

Lawrence C. Butler:

You’re… you’re quite correct.

Clarence Thomas:

And you could solve your problem by not giving references in discharge cases?

Lawrence C. Butler:

That’s correct.

But, Your Honor, I would also point out that that does… the Act itself does give a cause of action to someone caught in that situation.

And the Act points them to the direction of the next employer, the prospective employer.

Because if the second employer will refuse to hire somebody, will not accept their application in retaliation for having filed a charge or participated in a proceeding, that is a 704–

Ruth Bader Ginsburg:

But why wouldn’t somebody who is not yet an employer retaliate?

Ruth Bader Ginsburg:

That… I know that was in your brief, but that seemed to me very strange.

The… the employer that has fired a person gives a bad reference, and then your suggesting, well, there may be a claim against the next person who won’t hire that person in reliance… I mean as a… as a lawyer, don’t you, don’t you have a much stronger case against the one who gave the reference, allegedly false, than the one who credited it?

Lawrence C. Butler:

–No, I don’t, because that’s not what the statute says.

The statute says that the person who is doing the hiring.

I think it… I think–

Antonin Scalia:

It wouldn’t be retaliation, of course, but the statute doesn’t use the word “retaliation”?

Lawrence C. Butler:

–That’s right.

It discrimination.

Antonin Scalia:

But if you are a… a prospective employer and you turn down an applicant because I don’t want to hire an applicant who has filed an EEOC complaint with his previous employer… this guy is a troublemaker… it wouldn’t really be retaliation, but it would violate this provision, because it specifically refers to applicants for employment, right?

Lawrence C. Butler:

Yes.

We may be getting ourselves in trouble by using the shorthand term of “retaliation”.

Antonin Scalia:

Retaliation.

Lawrence C. Butler:

That’s right.

David H. Souter:

Yeah, but as… as a practical matter, it seems to me the… the situation, because it is not what’s going to happen except among very, very stupid employers, because the… the retaliatory letter is… is not going to say, Don’t hire this guy because he filed a complaint.

The letter is going to say, Don’t hire him because he does lousy work.

Lawrence C. Butler:

That’s right.

David H. Souter:

And… and the prospective employer who relies upon that is… is not drawing any distinction among employees, that… or among prospective employees… that is not a legitimate distinction.

So there’s not going to be any cause of action there.

Lawrence C. Butler:

I would agree; if it is a truthful reference, why should there be?

If the employer is making a truthful reference about someone, does the employee really deserve to be protected?

David H. Souter:

Yeah, but I thought your argument… I thought your argument was that the person who is subject to this discrimination will have a cause of action under the statute against the prospective employer who relies upon the retaliatory letter.

Lawrence C. Butler:

Well–

David H. Souter:

And unless the retaliatory letter is expressly based upon filing the EEOC complaint, that won’t be true.

Lawrence C. Butler:

–That’s right.

Or if he could somehow prove that whatever statements were made in the letter were actually fabricated because of that, because of the charge, and he knew about it, the prospective employer knew… knew about it–

David H. Souter:

Right.

But that’s–

Lawrence C. Butler:

–then you could make a case on that, yes.

David H. Souter:

–Yeah, that’s a tough, uphill fight.

But that’s not going to be the characteristic case–

Lawrence C. Butler:

I… I would think not.

But… you know, it wasn’t extensively discussed in any of the briefs, but I was struck by an analysis that Chief Justice Toflatt, in the 11th Circuit, wrote in 1990, where he analyzed this whole claim under Court v. Ash, and whether there would be an implied cause of action under that test.

And he said there’s no conclusion other than it cannot.

Because there is a remedy contained within the statute.

And what you’re doing is trying to broaden that statute for an additional remedy against additional parties.

And that’s not… you know, that’s not what you should be doing, in recognizing a new cause of action.

I think the… the language of the statute is very plain.

I think it… it’s plain to employers, certainly.

And we can only assume it was plain to Congress when they wrote it.

This Act applies to employees and applicants for employment.

It does not apply to anyone else.

Those two groups will always be able to claim their rights under 704, regardless of the outcome of this case.

But to rewrite this Act to include former employees will only destroy the Act by destroying the certainty of the statute itself.

If you rewrite it, then no one will be sure what it means in the future, and to whom it will apply.

I think we’re best sticking with the bright line.

Once the employment is over, any rights under 704 have terminated.

Thank you.

William H. Rehnquist:

–Thank you, Mr. Butler.

Mr. Lenchek, you have 3 minutes remaining.

Allen M. Lenchek:

Mr. Chief Justice, unless the Court has additional questions, we have nothing further.

William H. Rehnquist:

Very well, the case… the case is submitted.