What's So Reasonable About Reasonableness? Rejecting a Case Law-Centered Approach to Title VII's Reasonable Belief Doctrinene

The U.S. Supreme Court has handed down several decisions in recent years interpreting the anti-retaliation provision of Title VII of the Civil Rights Act of 1964 (“Title VII”). However, an issue that remains unresolved by the Court despite the frequency with which it arises in the lower federal courts is the propriety of the reasonable belief doctrine. Title VII's anti-retaliation provision, in pertinent part, provides "it shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice [under Title VII].” Literally read, the provision requires that an employee oppose a practice Title VII actually makes unlawful. If the employee does so and is retaliated against, the statute affords the employee relief. While the Court has spoken on the issue only in dicta, most courts of appeals have rejected this interpretation and have held that the opposition clause protects employees who complain about conduct reasonably believed to be unlawful discrimination. While the article argues that the lower courts have been correct to reject a literal interpretation of the opposition clause, it critiques recent application of the reasonable belief doctrine. Most courts require that employees demonstrate the reasonableness of a belief about the illegality of alleged discrimination in light of existing substantive law. Case law is the objective criterion on which reasonableness is based, and employees are given no leeway for error about judicial interpretations of Title VII. Indeed, they have been required to understand circuit splits and how the court hearing the plaintiff’s claim has interpreted the statute. The article explains that this application of the reasonable belief doctrine raises the same concerns that led courts to reject a literal interpretation of the opposition clause and that gave rise to the reasonable belief doctrine in the first place. Moreover, the article addresses the reasonable belief doctrine from both a predictive and normative perspective. It notes that concerns raised by the reasonable belief doctrine have led commentators to argue for its abandonment in favor of protecting employees who demonstrate a subjective, good-faith (rather than a reasonable) belief that they were opposing unlawful discrimination. While this article agrees that a good-faith standard is preferable to a purely objective one based on case law, as a predictive matter, it argues that such a standard is unlikely to find favor with the Court. Recent authority emphasizes the need for objective standards and rejects a purely subjective approach when interpreting Title VII. As a normative matter, the article proposes a totality of the circumstances approach to assessing reasonableness, expanding the concept beyond the facts of the plaintiff’s case and judicial interpretations of Title VII with which most lay employees are likely unfamiliar. The article shows that the test articulated here is consistent with recent Court precedent interpreting Title VII, promises broader protection than the case-law approach and better effectuates the original purposes of the reasonable belief doctrine than current standards.