Robinson v Shell Oil Company Reply Brief for Petitioner

    N o. 95-1376 f\M-S70*o

In  T he

Supreme Court of tftc Mntteb States
October T erm , 1995

Charles T. R obinson , Sr .,
Petitioner,

v.

Shell Oil  Company,
Respondent.

On Writ of Certiorari to the 
United States Court of Appeals for the Fourth Circuit

REPLY BRIEF FOR PETITIONER

AllenM. Lenchek 
(Counsel of Record)

401 E. Jefferson Street 
Suite 208
Rockville, MD 20850-2616 
(301)217-5838

Eric Schnapper 
University of Washington 

School of Law 
1100 NE Campus Parkway 
Seattle, WA 98105-6617 ' 
(206) 616-3167

Elaine R. J ones 
Director-Counsel

Theodore M. Shaw 
Norman J. Chachkin 
Charles Stephen Ralston 
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson Street 
Suite 1600
New York, NY 10013 
(212)219-1900

Attorneys for Petitioner

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. 1-800-347-8208



1
TABLE OF CONTENTS

In troduction ........................ .................................................  1

I. The Statutory Language .  ..................... .............. 2

II. The Availability of State Remedies ................. 10

III. The Workability of Applying Section 704
to Former Employees ..................................... .. 15

Conclusion 19



TABLE OF AUTHORITIES

Cases: Pages:

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) . . 16

Bagwell v. Peninsula Regional Medical Center, 665 A.2d
297 (Md. App. 1995) ..............................................  12

Bailey v. USX Corp., 850 F. 2d 1506 (11th Cir. 1988) . 17

Franks v. Bowman Trans. Co., 424 U.S. 747 (1976) . . .  16

Harris v. Forklift Sys., Inc., 410 U .S .___, 114 S. Ct. 367
(1 9 9 3 ).......................... ........................................ .. . 20

Hishon v. King & Spalding, 467 U.S. 69 (1984) . . . . . . .  1

McDonald v. Santa Fe Trail Transportation Co.,
427 U.S. 273 (1976) . . . ........    11

Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) . . 20

Newman v. Piggie Park Enterprises, 390 U.S. 400 (1968) 19

Patterson v. McLean Credit Union,
491 U.S. 164 (1989) ............................. .. 12, 14

Polsby v. Chase, 970 F.2d 1360 (4th Cir. 1992), vacated
sub nom. Polsby v. Shalala, 507 U.S. 1048 (1993^ 17

Robinson v. Shell Oil Co., Case No. JFM 93-20 (D. Md.
April 15, 1994) ......................................   17

St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993) 17

ii



Pages:

Veprinsky v. Fluor Daniel, Inc., 87 F.3d 881 (7th Cir.
1996)...................      9

Vinson v. Taylor, 23 Fair Empl. Prac. Cas. 37 (D.D.C.
1980) .........................................   20

Statutes: Pages:

29 U.S.C. § 158(a)(3) ..........................................................  10

29 U.S.C. § 2615 .................................................... ..............5

29 U.S.C. § 2617(a)(1) .............. .......................................... 5

42 U.S.C. § 12203 ...............................................   5

42 U.S.C. §§ 12141-65 .............. ................................ . . . .  5

42 U.S.C. §§ 12181-89 ................................... ................ .. . 5

1996 Md. Laws 469 ...........................................................   12

Alaska Stat. § 09.65.160 (1 9 9 3 )..............................   12

Alaska Stat. § 09.65.160 (1 9 9 3 ).................................   *

Cal. Gov’t Code § 1031.1 (West 1993) . . . . . . . . . . .  12

Civil Rights Act of 1964, section 7 0 1 (f)........... 2

Civil Rights Act of 1964, section 703 ......passim

Civil Rights Act of 1964, section 704(a) .  passim

iii



Pages:

Civil Rights Act of 1964, section 708 ........................ 14

Civil Rights Act of 1964, section 717 . ................. .. 5

Fla. Stat. § 768.095 (1 9 9 1 )........................................... .. 12

Me . Rev. Stat. Ann. tit. 26, § 598 (West 1995) . . . . .  12

N.M. Stat. Ann. § 50-12-1 (Michie 1995) . . . . . . . . .  12

Okla. Stat. Ann. tit. 40, § 61 (West 1995) . . . . . . . .  12

Tenn. Code Ann. § 50-1-105 (1995) ........................... .. 12

Other Authorities: Pages:

110 Cong. Rec. 7213 ...................... .. ............... .....................8

110 Cong. Rec. 8203  .......................... ........... .. 8

iv



REPLY BRIEF FOR PETITIONER

Introduction

Although supporting the result arrived at by the 
Fourth Circuit, respondent has abandoned, and to some 
degree repudiated, the central reasoning of the court of 
appeals below.

The Fourth Circuit insisted that the general 
prohibition against discrimination contained in section 703 
of Title VII does not apply to any discriminatory acts by an 
employer occurring after the end of the employment 
relationship.1 Relying on that premise, the court of appeals 
argued that Congress intended the scope of sections 703 and 
704(a) to be co-extensive. (Pet. App. A-14 to A-15). 
Respondent, on the other hand, concedes — as it must in 
light of Hishon v. King & Spalding, 467 U.S. 69 (1984) 
that section 703 indeed applies to former employees, and 
thus insists, contrary to the court below, that Congress did 
not intend section 704(a) to protect all the persons entitled 
to file charges under section 703. Respondent’s Brief ("R. 
Br.") 34-36).2

ipet. App. A-14 (the Title VII definition of "unlawful employment 
practice" "comprises discrimination with respect to certain aspects of 
employment, and does not redress discriminatory practices after the 
employment relationship has terminated") (emphasis in original); id. at 
A-15 ("Title VII does not redress discriminatory practices, however 
reprehensible, which occur after the employment relationship has 
ended").

2R. Br. 9 ("There are legitimate reasons for offering more protection 
against discrimination than retaliation").

Although respondent contends that Congress intended section 
704(a) to be narrower than the substantive prohibitions of section 703, 
it is clear on the face of the statute that section 704(a) is broader in at 
least two respects. First, although section 703, in conjunction with 
section 706, provides a remedy only to persons who have filed timely and 
meritorious charges, section 704(a) provides remedies to all persons 
retaliated against for filing charges, regardless of whether those charges



2

The Fourth Circuit relied heavily on the definition of 
"employee" contained in section 701(f) of Title VII. We 
noted in our opening brief the inherent ambiguity in that 
statutory definition, stemming from the two different 
meanings of the word "employed" (P. Br. 17-19). In this 
Court, respondent disdains any analysis of the definition 
contained in section 701(f), asserting instead that "an 
employer knows who ‘his employees’ are" (R. Br. 24). 
Respondent does not of course suggest that section 701(f) 
defines "employee" as "the people whom employers call their 
employees." Rather, respondent grounds its argument, not 
on the statutory definition, but on what it asserts is 
vernacular usage among employers.3

I. The Statutory Language

At this point there appear to be two areas of 
agreement between the parties. First, both parties concur 
that the term "employee" is at times utilized to refer to 
former as well as current employees; respondent calls this 
the "generic sense" of the term. Compare R. Br. 17-19 with 
P. Br. 8-13. Second, the parties agree that the correct 
interpretation of the word "employee" in section 704(a) turns 
at least in part on the manner in which that term is 
employed in Title VII. Compare R. Br. 9 ("‘Employee’ must 
be understood within the context of Title VII") with P. Br. 
13 et seq.

ultimately failed either on the merits or on some procedural ground. 
Second, although section 703 provides remedies only for persons who are 
themselves victims of employment discrimination on the basis of race, 
color, religion, gender or national origin, section 704(a) protects persons 
who never themselves suffered such discrimination, but who were 
penalized for having opposed discrimination against others.

3Contrary to respondent’s description of common usage, a company 
might well refer to one of its retirees as a "long time Widget Company 
employee."



3

Respondent insists that the term "employee" in 
section 704(a) must refer only to current employees because 
Title VII always uses "employee" in this narrower sense 
alone. "Title VII consistently uses ‘employee’ to refer to 
current employees" (R.Br. 9).4

In our opening brief we noted that in nine different 
instances Title VII uses the word "employee" in a context 
which clearly includes former employees (P. Br. 14). With 
regard to the remedial provisions of sections 706(g)(1) and 
717, respondent asserts that the term "employee" means 
"‘employee’ at the time of the adverse employment action; 
i.e. discharge" (R. Br. 22). But a person who was an 
employee "at the time of the adverse employment action" is 
not a "current" employee but a former employee, albeit a 
particular kind of former employee.5 When section 717(b) 
requires "that an employee . . .  be notified of any 
[administrative] action taken on any complaint," and section 
717(c) authorizes the filing of a civil action by an "employee" 
"[wjithin 90 days of receipt of notice of final [agency] action" 
the statute is clearly referring, not to events that will occur 
at "the time of the adverse employment action" but at a 
point in time well after that adverse action has occurred — 
and after the plaintiff in a discharge case will have ceased to 
be a current employee.

Three provisions of Title VII refer to "employees" of 
the EEOC (see P. Br. 14-15). Respondent does not deny

4See R. Br. 21 ("‘Employee’ is not used differently in other sections 
of Title VII"), 24 ("identical words used in different parts of the same act 
are intended to have the same meaning.")

5Respondent’s reformulation is also insufficient to make sense of 
section 717; if "employee" meant only an individual employed at the time 
of the adverse action, section 717 would not apply, for example, if agency 
officials decided to terminate pensions for all African-American retirees, 
or to refuse to provide job references for laid-off female workers.



4

that these provisions apply to former EEOC workers, but 
simply asserts that

they have nothing whatever to do with the 
prohibitions on employers not to discriminate against 
individuals or to retaliate against "his employees."

(R. Br. 22). While the subject matter of these three 
provisions is not the relationship between private employers 
and their former employees, the use of "employee" in these 
sections to encompass former EEOC workers manifestly is 
relevant to, and refutes, respondent’s assertion that 
"employee" is "consistently" used in Title VII to refer solely 
to current employees.

In our opening brief we noted that in six instances 
Title VII uses the term "employee" where Congress must 
have meant to include, or have been referring exclusively to, 
future employees (P. Br. 15-16). Respondent’s somewhat 
cryptic response to these provisions reads as follows:

Such sophistic reasoning cannot be taken seriously. 
If "employee" includes individuals to be hired for 
future employment, then why does § 704(a) 
specifically protect "applicants for employment?"

(R. Br. 23.) Respondent appears to contend that "employee" 
never includes future employees (R. Br. 23). If that were 
the case, however, the six sections discussed in our opening 
brief would be nonsensical; the BFOQ clause, for example, 
would apply only to job applicants who were already 
employed elsewhere, but not to out-of-work applicants. The 
answer to the question posed by respondent is readily 
apparent: even though "employee" is used in Title VII to 
refer to future employees, section 704(a) included a 
reference to applicants to assure that its protections would 
apply to retaliation against unsuccessful applicants, e.g., to an



5

employer which refused to hire someone because of his or 
her participation in protected activities.6

Respondent suggests that if Congress had intended 
section 704(a) to protect former employees, it would have 
utilized the term "individual" rather than "employee" in that 
provision. (R. Br. 15) But use of the term "individual" 
would have expanded the scope of section 704(a) far beyond 
former employees; redrafted in that way, the section would 
have applied to the entire population of the United States.7 
Although the section 703(a) prohibition regarding 
discrimination by employers uses the term "individual," it 
does so in a way that could encompass only current or

"Respondent appears to assume that the "applicant" clause of section 
704(a) refers to and protects only individuals who were current applicants 
at the time of the retaliation. But Title VII frequently uses the term 
"applicant" to refer to an individual who was actively seeking employment 
at some point in the past. See, e.g., sections 717(b) ("applicants" to 
receive notice of final agency action), 717(c) ("applicants" can bring civil 
action). If the term "applicant" in section 704(a) indeed protects from 
retaliation individuals who were applicants prior to, but not at the time 
of, the retaliatory act, exclusion of former employees would be 
particularly strange, since an individual who had never worked for the 
employer in question would enjoy greater protection than one who had.

7The anti-retaliation provision of the Americans With Disabilities Act 
of 1990 is deliberately framed to cover any "individual," 42 U.S.C. 
§ 12203, even absent any employment connection between the retaliator 
and the victim, because most of the substantive rights created by the 
ADA deal with non-employment matters. E.g., 42 U.S.C. §§ 12141-65 
(access to public transportation), 42 U.S.C. §§ 12181-89 (access to public 
accommodations).

The anti-retaliation provision of the Family and Medical Leave 
Act refers to retaliation against any "individual," 29 U.S.C. § 2615, but 
the civil cause of action created by the FMLA is limited to claims by 
"eligible employees." 29 U.S.C. § 2617(a)(1).



6

former employees or applicants.8 Similarly, Congress could 
not, as respondent suggests, have reached former employees 
simply by deleting the possessive "his" before "employees" 
(R. Br. 19); that change would have encompassed every 
employee of every employer in the United States, but would 
not — on respondent’s view — have applied to former 
employees, like petitioner, who were out of work at the time 
of the retaliatory act.

Of course, Congress could have addressed this issue 
more specifically. The drafters could have more clearly 
indicated a desire to include former employees within the 
scope of section 704(a) by using the very words "former 
employee" in the text of the statute, or they could have used 
the phrase "current employee" rather than "employee" to 
exclude former employees unequivocally. The mere fact that 
either meaning might have been, but was not, set forth 
expressly does not prove that the contrary meaning was 
intended. Although Congress clearly intended that other 
provisions of Title VII apply to current and/or future and/or 
former employees, the framers of that legislation never used 
the words "current," "former," or "future," but left the

8Section 703(a)(1), for example, makes it an unlawful employment 
practice to "fail or refuse to hire or to discharge any individual or 
otherwise to discriminate against any individual with respect to his 
compensation, terms, conditions, or privileges of employment, because of 
such individual’s race . . ." (emphasis added). The only "individual" to 
whom this section could apply would be a job applicant or current or 
former employee.

Although the anti-retaliation provisions in section 704(a) 
regarding employment agencies and joint apprenticeship committees refer 
to "individuals," that is because "individuals" is the term used in section 
703 to denote the persons protected from discrimination. These 
substantive and anti-retaliation provisions do not use the term "employee" 
because the persons against whom an employment agency or joint 
apprenticeship committee might discriminate are not ordinarily their 
employees.



7

appropriate meaning of "employee" to be divined from the 
particular context in which that word was utilized.9

The fact that Congress expressly forbade employer 
retaliation against "applicants" is not inconsistent with 
construing "employee" to include former employees. 
Although "employee" is used throughout Title VII to refer 
to past or future as well as current employees, Congress 
often included the term "applicant" in other sections when it 
wished to make clear that job seekers were to be protected. 
It is scarcely to be believed that Congress, by adding the 
term "applicants" to section 704(a) to assure that job seekers 
would be protected against retaliation, intended also covertly 
to narrow dramatically the scope of section 704(a) by 
excluding former employees. On the contrary, the express 
inclusion of applicants would make no sense if Congress 
intended to exclude former employees from the scope of 
section 704(a), because the inclusion in the provision of 
applicants would permit a former employee seeking work 
elsewhere to obtain the protections of section 704(a) by the 
simple step of also filing a job application with his former 
employer, thus becoming an "applicant."

To be sure, as respondent notes, Congress has at 
times made express reference to former employees in other 
statutes (R. Br. 15-16). But respondent does not deny that 
at times Congress has also used the term "employee" in

’Respondent attaches significance to the fact that Congress did not 
amend section 704(a) in 1991 when it amended Title VII, despite the fact 
that two other statutes enacted in the early 1990s referred expressly to 
former employees (R. Br. 15). But at the time when Congress adopted 
the 1991 amendments to Title VII, all the appellate decisions to have 
reached the issue had held that section 704(a) did apply to former 
employees. The first decision clearly to the contraiy, Polsby v. Chase, 970 
F.2d 1360 (4th Cir. 1992), vacated sub nom. Polsby v. Shalala, 507 U.S. 
1048 (1993), did not occur until July 1992, some eight months after the 
adoption of the 1991 amendments.



8

other statutes to refer to former employees (R. Br. 16-19). 
"Employee" is a relatively elastic term which this Court, and 
Congress, have understandably used in a variety of ways. 
The term "employee" appears in more than 5100 sections in 
the United States Code.10 It would be quite impossible for 
Congress to review all those statutes whenever it used the 
term in new legislation; it would be astounding if Congress 
could use such a general term in thousands of statutes 
without considerable variation in context, intent and 
meaning. The meaning of the term "employee" in a 
particular provision must be gleaned, not from the divergent 
ways in which the word is used in other laws, but from the 
context and purpose of the specific statute in question.

We noted in our opening brief that the authoritative 
interpretations of section 704(a) in the legislative history of 
Title VII repeatedly refer to its protections as extended to 
"persons" (P. Br. 34). Respondent argues, "This is broader 
language than Congress chose in the final version of the 
statute" (R. Br. 33). Respondent evidently misapprehends 
what occurred during the enactment of Title VII. At the 
time when the Clark-Case Memorandum described the 
precursor of section 704(a) as protecting "persons," the 
relevant language of that section was precisely the same as 
"the final version of the statute" — "employee."11

l0A Lexis search of the USCODE file for "text(employee)1' identifies 
5167 sections. The term is used in sections of all but three of the fifty 
titles of the United States Code.

“The anti-retaliation provision of the bill summarized by the 
Memorandum forbade retaliation by an employer ''against any of his 
employees or applicants for employment." See 110 Cong. Rec. 7213 
(Clark-Case Memorandum); id. at 8203 (reprinting § 705(a) of bill during 
subsequent debate that occurred prior to voting upon any proposed 
amendments to the bill).



9

Respondent does not argue that Congress wanted to 
leave former employees without federal protection from 
retaliation. But, respondent asserts, Congress chose to 
protect such individuals only from retaliation by new 
prospective employers, against whom they had never filed 
charges or testified, while permitting retaliation by the 
former employer against whom those charges or testimony 
was directed. Respondent offers no explanation as to why 
Congress would have chosen to place outside the 
prohibitions of § 704(a) the employer most likely to want to 
retaliate against the charging party, and the only employer 
who would benefit if coercive retaliation forced a former 
employee to withdraw a charge.

A recent Seventh Circuit decision regarding the scope 
of section 704(a) provides an additional text-based reason to 
construe the statute to apply to former employees. Veprinsky 
v. Fluor Daniel, Inc., 87 F.3d 881 (7th Cir. 1996). As that 
opinion noted, section 704(a) prohibits retaliation inflicted 
because the victim "‘opposed any practice made an unlawful 
employment practice by this subchapter’" or "‘participated in 
any manner in an investigation, proceeding or hearing under 
this subchapter.’" Id. at 890 (emphasis added in part). In 
many of the most common types of employment discrimination, 
however, the individual affected would not be a current 
employee of the employer in question at the time he or she 
filed a charge or took part in a subsequent investigation or 
proceeding. If section 704(a) protected only current 
employees, that section — far from applying to "any" 
violation or "any" proceeding — would not apply to almost 
all charges of hiring discrimination, discriminatory dismissals, 
or discrimination in pensions or other post-employment 
benefits.



10

II. The Availability of State Remedies

Respondent advances two contradictory arguments 
regarding state laws12 bearing on relations between 
employers and former employees. At pp. 25-30 of its brief, 
respondent contends that it is of no consequence whether 
section 704(a) applies to former employees because 
comparable protections for former employees are already 
provided by state law; on this view, application of section 
704(a) would be unnecessary and duplicative. At pp. 37-39 
of its brief, on the other hand, respondent argues that 
section 704 should not be applied to former employees 
because state law remedies for those workers are far 
narrower than section 704, and that applying section 704 
would thus in some sense interfere with state law.13 
Obviously both of these arguments cannot be correct; we 
submit that neither is.

State defamation law, on which respondent 
principally relies (R. Br. 29), is in many respects inadequate 
to advance the prophylactic purposes of section 704. 
Defamation law would not forbid a variety of extremely 
effective retaliatory practices, such as (a) refusing to provide 
any references at all for charging parties, (b) refusing to 
include in references about charging parties any positive

12The National Labor Relations Act does not, as respondent suggests, 
contain a general prohibition against blacklisting. Rather, that law 
forbids an employer only from refusing to hire an individual "to . . . 
discourage membership in any labor organization." 29 U.S.C. § 158(a)(3).

"Respondent may be asserting that, in those instances (e.g., 
retaliation against a current employee) in which section 704(a) 
concededly does apply, its protections are excessive and "absurd," because 
state laws — although permitting forms of retaliation forbidden by 
section 704(a) — already provide "adequate" protection. Such a 
contention would be simply a disagreement with the decision of Congress 
to enact section 704(a) in the first place.



11

information, (c) placing in references regarding charging 
parties types of adverse or personal information that would 
not be included in references for any other former 
employees,14 (d) including in a reference a truthful (albeit 
retaliation-based) statement that the former employer would 
not rehire, or recommend, the former employee. State 
defamation law cannot be fairly read to endorse, or protect, 
such abuses; these are simply problems that defamation law 
does not undertake to address. In any event, Title VII 
clearly does forbid an employer, regardless of state law, from 
taking such adverse actions on the basis of race or gender 
when providing recommendations regarding former or 
current employees, or from taking such actions, for 
retaliatory reasons, regarding recommendations concerning 
current employees. There is no reason to treat any 
differently retaliation-based adverse actions directed at 
former employees.

Any state law remedies that might apply to some 
types of retaliation would necessarily vary from one 
jurisdiction to another. Respondent argues, for example, 
that the caselaw-based "qualified privilege" for references 
could immunize an employer from being sued for a 
retaliatory adverse reference (R. Br. 38), while one amicus 
supporting respondent insists, to the contrary, that a 
retaliatory motive would eviscerate any such privilege.15

14Where an employer’s normal practice is to provide only laudatory 
information, or no information at all, about former employees, Title VII 
forbids an employer to single out former employees on the basis of race, 
or in retaliation for having filed a Title VII charge, and as to them alone 
dispense harmful — albeit accurate — information. See McDonald v, 
Santa Fe Trail Transportation Co., 427 U.S. 273 (1976) (Title VII forbids 
employer to impose greater sanction on transgressing employee on 
account of his race).

15Brief Amiens Curiae of Washington Legal Foundation, at 15 n.7.



12

The scope of any such privilege might well turn on 
differences in state laws. Respondent also notes that eleven 
states have adopted special statues limiting defamation 
actions based on employer references; the terms of these 
statutes differ considerably,16 and numerous other states do 
not have such laws.17 It is difficult, moreover, to see how 
the existence of these state laws — the earliest of which was 
enacted in 1986 -  could control the interpretation of a 
federal civil rights law adopted several decades earlier.

While there might well be some instances in which 
retaliation forbidden by section 704 would also violate state 
law, this crazy-quilt of state statutes and caselaw is entirely 
inadequate to protect the viability of the Title VII charge 
process. At best the viability of that process would vary 
from state to state, a result flatly inconsistent with the need 
for a uniform national enforcement scheme. See Patterson

16The California statute, for example, is limited to references provided 
with regard to applicants for law enforcement positions. Cal. Gov’t 
Code § 1031.1 (West 1993). The Oklahoma law applies only to 
references provided with the employee’s consent. OKLA. Stat. Ann. tit. 
40, § 61 (West 1995). Several of these provisions are expressly 
inapplicable if the reference violated civil rights laws. Alaska Stat. § 
09.65.160 (1993); Tenn. Code Ann. § 50-1-105 (1995). Most but not all 
statutes deny immunity where the employer acted in bad faith or with a 
malicious purpose. Alaska Stat. § 09.65.160 (1993); Fla. Stat. § 
768.095 (1991); ME. Rev. Stat. Ann. tit. 26, § 598 (West 1995); N.M. 
Stat. Ann. § 50-12-1 (Michie 1995); Tenn. Code Ann. § 50-1-105 
(1995). Maryland recently enacted a law immunizing employers unless 
they act with actual malice or intentionally or recklessly disclose false 
information. 1996 Md. Laws 469 (May 14, 1996; effective October 1, 
1996).

17Maryland law regarding interference with contracts would have no 
application in a case such as this, since it applies only where a 
contractual relationship has been created between the former employee 
and the new employer. Bagwell v. Peninsula Regional Medical Center, 665 
A.2d 297, 313 (Md. App. 1995).



13

V. McLean Credit Union, 491 U.S. 164, 183 (1989). 
Frequently a former employee — even with the aid of skilled 
counsel — could not reliably glean from state law whether 
it would be safe to file an EEOC charge or to talk to an 
EEOC investigator. Ordinary charging parties, who are 
untutored in the law, and who do not enjoy the luxury of a 
personal attorney on retainer to give advice about issues 
such as state defamation law, could not know with any 
assurance whether it was prudent to file a complaint with, or 
give information to, the EEOC.

Even where substantive state law did forbid a 
particular retaliatory act, that would ordinarily be insufficient 
as a practical matter to safeguard the Title VII process. The 
value of section 704(a) to a current or former employee lies 
not only in its substantive scope, but also in the availability 
of the informal and inexpensive Title VII enforcement 
machinery to implement section 704(a) itself. A charging 
party who is the victim of retaliation forbidden by section 
704(a) can seek legal protection merely by submitting a 
single-page handwritten charge to the nearest EEOC office; 
the EEOC is then responsible for investigating and seeking 
to resolve the problem, and the Commission can bring a civil 
action in its own name to end the abuse. In contrast, a 
charging party forced to rely on state law must retain a 
private attorney to bring a state civil action — a course of 
action far beyond the means of most charging parties, 
especially those who are out of work.18 Any state law 
remedies would of course be unavailable to the EEOC itself; 
if former employees, in response to actual or threatened 
retaliation, refused to file charges, or to cooperate in EEOC

18The remedies available in a state defamation action would often be 
inferior to the remedies provided by Title VIL Neither injunctions nor 
awards of counsel fees, two key elements of the relief authorized by 
section 706, are ordinarily available in a defamation action.



14

investigations, the Commission could not file suit to stop 
that retaliation, but would be relegated to pleading with the 
justifiably frightened former workers to hire private counsel 
and bring their own lawsuits against the employers at issue.

Respondent correctly observes that section 704(a), if 
it applied to retaliatory references intended to punish former 
employees, would forbid many practices that are not 
prohibited by state defamation law. Such differences, 
respondent asserts, would "conflict" with state law and lead 
to "absurd" results. Worse yet, applying section 704(a) to 
retaliatory references, respondent urges, would disturb the 
"balance" which the states have seen fit to draw between 
enforcing Title VII and protecting employees "against 
groundless claims of retaliation" (R. Br. 40). Respondent 
warns that "[djisgruntled former employees could sue former 
employers over employment references even if . . . the 
employer has complied with state law" (R. Br. 10). But the 
proper "balance between employee and employer rights [is] 
struck by Title VII" itself. Patterson v. McLean Credit Union, 
491 U.S. at 182 n.4. Section 704(a) clearly does permit a 
former employee to bring such suits — regardless of state 
law — if retaliatory references were issued before he or she 
was fired, or if an adverse reference was motivated by race 
or gender. As to actions brought by these former 
employees, Congress has clearly chosen to strike the balance 
in favor of safeguarding the Title VII administrative process. 
Respondent offers no reason why Congress, having done so 
with regard to workers retaliated against while still 
employed, would have left to the states the role of 
determining the degree of protection, if any, to be accorded 
to workers retaliated against after they were dismissed.

The ultimate answer to respondent’s argument based 
on state law is found in Title VII itself. Section 708 
provides that any state law that "purports to require or 
permit the doing of any act which would be an unlawful



15

employment practice under this title" is superceded. Thus, 
even if state law would permit an employer to issue a 
retaliatory letter of reference, Congress has already provided 
that such a law will not shield the employer from liability 
under Title VII.

III. The Workability of Applying Section 704 
to Former Employees

Respondent suggests that it would be impracticable 
"to fashion equitable relief for a former employee" (R. Br. 
31-32) But Title VII unquestionably does require courts to 
fashion remedies for former employees in a variety of 
circumstances. If, for example, an employer wrote a 
retaliatory adverse reference letter just before discharging an 
employee, that action would unquestionably be unlawful; 
respondent does not deny that courts could and would 
provide equitable and monetary relief in such a case, even 
though, by the time the court acted, the victim of the 
retaliation would have become a former employee. Thus 
here the remedy for the allegedly retaliatory reference letter 
of March 2, 1992 would be essentially the same as the 
remedy that would have been provided had the same letter 
been written on October 12, 1991, the day before petitioner 
was dismissed. Similarly, if respondent had sent an adverse 
post-dismissal reference letter because of petitioner’s race, 
that would of course have been illegal, and petitioner would 
have been entitled to equitable and legal relief. Where a 
plaintiff has been injured by a retaliatory or race-based 
reference letter, the fashioning of relief is not made harder, 
or affected at all, by whether the victim was a current or 
former employee at the time the letter was written, or by 
whether the unlawful motive was retaliation or 
discrimination on the basis of race.



16

The remedial problems hypothesized by respondent 
are insubstantial.19 Title VII does not contain a general 
prohibition against providing adverse information — truthful 
or otherwise — to a prospective employer. What Title VII 
does require is that an employer not make on certain 
prohibited bases — e.g., race, gender, or the filing of a 
charge with EEOC — its decision whether to make adverse 
statements in a reference letter. Where an employer has 
acted with an impermissible motive, a court can and should 
forbid future violations of the law, and direct such corrective 
measures as are necessary to place the victim in the position 
which he or she would have occupied but for that violation 
of federal law. Franks v. Bowman Trans. Co., 424 U.S. 747, 
762-70 (1976). Congress entrusted the framing of particular 
injunctive decrees to the sound discretion of district judges. 
Albemarle Paper Co. v. Moody, 422 U.S. 405, 416-20 
(1975).20

Respondent expresses concern that, if former 
employees were protected from retaliation, baseless 
retaliation claims might be filed regarding reference letters 
written decades after a worker had left the employ of a

19Respondent also expresses concern about what types of retaliatory 
actions by an employer against a former employee would be actionable 
(R. Br. 29 n.37, 32). But this affords no reason to deny protection to 
former employees; the kinds of retaliatory actions forbidden against 
former employees are the same kinds of actions which section 704(a) 
forbids against current employees.

“ Standard provisions in settlements of Title VII discriminatory 
discharge cases deal with letters of references or responses to other 
inquiries from prospective employees. A neutral text is often agreed 
upon, discharges are changed to resignations, all telephonic inquiries are 
routed to a designated person, etc.



17

particular firm (R. Br. 32-33).21 Actual experience, 
however, demonstrates that this does not occur, in the 
reported cases, as in the instant case, disputes regarding 
allegedly retaliatory reference letters typically arise within a 
matter of months after the plaintiff ceased working for the 
employer in question.22 In any event, any problems posed 
by post-employment retaliation claims are not different in 
principle from other post-employment claims. Title VII 
indisputably provides protections against other practices that 
could occur long after a plaintiff has stopped working for an 
employer. Title VII would clearly be violated if, for example, 
an employer decided in 1996 to slash pension benefits for 
Roman Catholics who had retired in 1966. If respondent

21Respondent insists that the district judge’s rejection of the merits 
of petitioner’s dismissal claim demonstrates that petitioner’s retaliation 
claim is baseless. Specifically, respondent argues that the trial judge who 
heard that dismissal claim necessarily found that all the adverse 
information in respondent’s March 2,1992, reference letter was "true" (R. 
Br. 6, 30, 39). There is, however, no decision by the district court 
regarding the contents of the letter. Indeed, there were neither an 
opinion nor any findings of fact following the trial of petitioner’s 
discharge claim. Rather, the district judge after a bench trial merely 
entered a one sentence order stating that "judgment is entered in favor 
of Defendant, Shell Oil Company." Robinson v. Shell Oil Co., Case No. 
JFM 93-20 (D. Md. April 15, 1994) (Judgment).

The mere fact that respondent prevailed at the trial of the 
discharge claim does not mean that the trier of fact accepted all, or even 
any, of respondent’s proffered explanations for dismissing petitioner. If 
the trier of fact had concluded that the reasons proffered by the 
employer were fabrications — and that the adverse reference letter was 
a tissue of lies — the court was certainly authorized on that basis to find 
that petitioner’s dismissal was racially motivated, but it was not required 
to do so. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 511 (1993).

nE.g., Bailey v. USX Corp., 850 F. 2d 1506 (11th Cir. 1988) 
(employment ended August 29, 1984; adverse reference provided in 
April, 1985); Polsby v. Chase, supra note 9 (employment terminated July 
9, 1985; adverse reference written on December 24, 1985).



18

were to adopt a policy of refusing to provide references for 
female former employees, a woman who had not worked for 
Shell since 1970 — but could not obtain a needed job 
reference in 1996 — clearly would be entitled to relief.

As a practical matter, however, any disputes about 
references from an employer of ten or twenty years earlier 
are exceedingly unlikely. Prospective employers are 
ordinarily interested in an applicant’s record in positions 
held within the previous few years; former employers often 
will no longer have records regarding employees who left 
decades earlier. In the rare case in which a prospective 
employer sought, received and relied on adverse information 
regarding a job held by an applicant many years in the past, 
the applicant would be hard pressed to convince a trier of 
fact that the former employer still held a grudge after all the 
intervening years.

In our opening brief we suggested that the Fourth 
Circuit’s interpretation of section 704(a) would permit 
employers to sabotage resort to the Title VII administrative 
process by victims of discrimination (P. Br. 23-30). 
Respondent maintains, however, that the critical purpose of 
the Title VII enforcement scheme is to "quickly resolve 
employment disputes" (R. Br. 32). Noting that section 
706(e)(1) establishes a limitations period of 180-300 days, 
respondent reasons that the policy of avoiding protracted 
disputes would be advanced, a fortiori, if aggrieved 
individuals -— in this case former employees subjected to 
retaliation —- were precluded completely from seeking 
redress under Title VII for their injuries. In a somewhat 
Orwellian turn of phrase, respondent describes this proposed 
scheme — under which the number of days within which 
certain retaliation charges would have be filed is set at



19

zero23 — as a "‘statute of repose’" (R. Br. 33).

The central purpose of Title VII, however, was not to 
eliminate or shorten disputes between employers and 
employees, but to eradicate discrimination. There were 
many decades, to be sure, when the national and state 
governments resolutely protected employers from 
discrimination litigation by openly tolerating, if not 
encouraging, racist employment practices. At least since. 
1964, however, the federal government has chosen a 
different course, making the elimination of invidious 
discrimination "a policy that Congress considered of the 
highest priority." Newman v. Piegie Park Enterprises, 390 
U.S. 400, 402 (1968).

Conclusion

Respondent suggests that limiting the protections of 
section 704(a) to current employees (and current applicants) 
would create only a minor and relatively unimportant 
limitation on the scope of that provision. In reality, such a 
limitation would go a long way toward eviscerating section 
704(a), and with it the protections essential to the viability 
of the Title VII enforcement scheme.

Under the interpretation of section 704(a) advanced 
by respondent, that provision would not protect from 
employer retaliation victims of discriminatory dismissals 
(since they would be former employees by the time they filed 
Title VII charges), former applicants for employment who 
filed charges of discrimination in hiring (unless they had 
reapplied at the time of the retaliatory act), or victims of 
discrimination against former employees (e.g. pension 
discrimination). Former employee witnesses being 
questioned by EEOC — witnesses who might ordinarily be

“ In the instant case petitioner filed his Title VII charge eight days 
after the allegedly retaliatory letter.



20

more willing than current employees to provide candid 
information — could be openly threatened by employers 
under investigation by EEOC.

These categories of persons to be excluded from the 
protections of section 704 represent a substantial portion of 
all Title VII complainants. Many of the Title VII cases that 
have been considered by this Court involved claims of 
discrimination in dismissals, hiring or pensions. We set forth 
in the Appendix to this brief a list of 22 such decisions of 
this Court. In many sexual harassment cases plaintiffs only 
file charges with EEOC after they have stopped working for 
the employer at issue; Teresa Harris24 and Mechelle 
Vinson25 had both become former employees — and on 
respondent’s view were thus subject to whatever forms of 
retaliation their former employers could devise — by the 
time they filed their Title VII charges.

For the above reasons, the decision of the Fourth 
Circuit should be reversed.

Respectfully submitted,

A l l e n  M. L e n c h e k

(Counsel of Record)
401 E. Jefferson Street, Suite 208 
Rockville, MD 20850-2616 
(301) 217-5838

^Harris v. Forklift Sys., Inc., 410 U.S. ___, 114 S. Ct. 367 (1993).
Harris resigned on October 1, 1987, as a result of the harassment, id. at 
369, and filed her Title VII charge on October 10, see Joint Appendix at 
10-11, id.

25Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). Vinson took 
indefinite sick leave in September, 1978, id. at 60, and in November of 
that year finally resigned and filed a charge with EEOC, see Vinson v. 
Taylor, 23 Fair Empl. Prac. Cas. 37 (D.D.C. 1980).



Eric Schnapper 
UNivERsrry of Washington 

School of Law 
1100 NE Campus Parkway 
Seattle, WA 98105-6617 
(206) 616-3167

Elaine R. Jones 
Director-Counsel

Theodore M. Shaw 
Norman J. Chachkin 
Charles Stephen Ralston 
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson Street 
Suite 1600
New York, NY 10013 
(212) 219-1900

Attorneys for Petitioner



APPENDIX



la

APPENDIX

St. Mary’s Honor Center v. Hicks, 509 U.S. 502 
(1993)(discharge claim).

EEOC v. Arabian American Oil Co., 499 U.S. 244 
(1991)(discharge claim); see 857 F. 2d 1014(5th Cir. 
1988)(charge filed "after" dismissal).

Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820 
(1990)(hiring claim).

EEOC v. Commercial Office Products Co., 486 U.S. 107 
(1988)(discharge claim).

Corporation of the Presiding Bishop v. Amos, 483 U.S. 
327 (1987)(discharge claim).

Anderson v. City of Bessemer City, 470 U.S. 564 
(1985)(hiring claim).

Crown, Cork & Seal Co. v. Parker, 462 U.S. 345 
(1983)(discharge claim).

Ford Motor Co. v. EEOC, 458 U.S. 219 (1982)(hiring 
claim).

Kremer v. Chemical Construction Corp., 456 U.S. 461 
(1982)(discharge and failure to rehire claim).

Texas Dept, of Community Affairs v. Burdine, 450 U.S. 
248 (1981)(discharge claim).

New York City Transit Auth. v. Beazer, 440 U.S. 568 
(1979)(hiring claims and discharge claims).

Fumco Construction Co. v. Waters, 438 U.S. 567 
(1978)(hiring claim).

Dothard v. Rawlinson, 433 U.S. 321 (1977)(hiring claim).

Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 
(1977)(discharge claim).



2a

International Union of Electrical Workers v. Robbins & 
Myers, Inc., 429 U.S. 229 (1976)(discharge claim).

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976)(discrimination in 
retiree benefits).

McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273 
(1976)(discharge claim)

Johnson v. Railway Express Agency, Inc., 421 U.S. 454 
(1975)(discharge claim)(pending charge amended to add 
discharge claim following petitioner’s dismissal).

Alexander v. Gardner-Denver Co., 415 U.S. 36 
(1974)(discharge claim)(petitioner fired September 29, 
1969; charge filed October 27, 1969).

Espinoza v. Farah Mfg. Co., 414 U.S. 86 (1973)(hiring 
claim).

McDonnell Douglas Corp. v. Green, 411 U.S.
792(1973)(hiring claim).

Phillips v. Martin Marietta Corp., 400 U.S. 542 
(1971)(hiring claim).