Employment Retaliation and the Accident of Text

Abstract

This Article explores the current and future landscape of employment retaliation law following the Supreme Court’s decisions in Thompson v. North American Stainless, LP and Kasten v. Saint-Gobain Performance Plastics Corp. As the law currently exists, statutory retaliation plaintiffs win or lose largely due to the accident of statutory text rather than the fact that the law is operating as Congress envisioned or as part of a coherent scheme of regulation. In short, the federal approach to workplace retaliation is inefficient, unnecessarily complex, and in need of major reform. Contrary to popular thinking, the article concludes that the text of many anti-retaliation provisions, coupled with the Court’s strongly textualist approach to interpretation, will leave courts with little choice but to adopt narrow constructions of other anti-retaliation provisions in the future.