I haven’t read the respondent’s brief, but according to Justice Alito (p.2), respondent “staunchly defends” the view that the term “discriminate” in Title VII’s retaliation provision should be read literally to cover any form of differential treatment. Both the Court and the concurring opinion quite properly reject that unbounded intepretation. But, in so doing, both opinions are necessarily construing an ambiguous statute to reach the result most consistent with their understanding of congressional intent and, yes, sound policy. You can call this activism if you like, but I would prefer to call it judging. It’s what courts are supposed to do.

Do you have a cite for the proposition that plaintiff wanted all acts, no matter how trivial or petty, to count for retaliation? You’re creating a strawman for ideological purposes. It might be more convincing if you didn’t exaggerate what’s really going on. The statutory language of the anti-retaliation provision prohibits discrimination, period, unlike the immediately-preceeding anti-discrimination provision which prohibits only discrimination in the terms and conditions of employment. Even a layman could see that the retaliation provision is not limited in the way you favor.

The Court–admirably joined by Scalia and Thomas, showing that their commitment to plain-text reading does not extend only to the extent it coincides with their policy preferences–followed the law as written. The Congress is the proper body to limit the retaliation law, not the Court. Alito’s opinion shows that he thinks he can rewrite *a statute* to suit his idea of what proper public policy would be. He admits as such. That’s activism.

I wasn’t relying on the canon of constitutional doubts to criticize the majority’s interpretation of Title VII’s retaliation provision.

I was relying on it to reject the even more expansive interpretation of Title VII’s retaliation provision advocated by the plaintiff, under which just giving a plaintiff a could shoulder might well constitute “retaliation.”

The plaintiff might well prove retaliation even under my more limited reading of Title VII’s retaliation provision. (Even Justice Alito’s concurrence, which adopted a more limited reading of Title VII’s retaliation provision than the majority, concluded that the plaintiff in Burlington Northern might be able to prove retaliation).

In fact, the opinion does the opposite. It specifically states that things like “the cold shoulder” are not materially adverse and do not count as retaliation.

Furthermore, the “constitutional doubt” question has absolutely no applicability on these facts. The woman was kicked off a more prestigious job and suspended without pay because she complained about harassment. No speech issues there.

If some court were faced with speech-related retaliation, the statute might be interpreted as excluding pure-speech based retaliatory acts so as to save the constitutionality of the statute. Cf. Noviello v. City of Boston, 398 F.3d 76 (1st Cir. 2005) (excluding from consideration evideidence of allegedly retaliatory act that was pure speech supporting accused harasser). But it doesn’t favor the meat-cleaver approach you put forth, in removing protection for the countless acts of non-speech related retailiation because it’s possible that a speech-related claim might be brought someday.

The fundamental fact is that Title VII is not about protecting workers at all. It is about protecting good managers from bad managers. It is a tool of management, by management, for management. Anyone involved in EEO law understands this as a matter of experience. The idea about managers being human is utter nonsense. They are getting paid to be managers, not to be human beings. If a wanted a human being as a manager, I would get joe dumddumb off the street and pay him $5 an hour. Managers are supposed to be better than their employees; if not, they have no call to hold the additional power and responsibility that being a manager requires.

The current ruling is a good ruling because it realizes that since most of the formal tools have already been taken away from poor managers, they have now resorted to informal ones. But formal or informal, the net result is the same: an atmosphere of fear. This, as any intelligent manager knows, is not the atmosphere that rings in the dollars, at least not in a economic system that condemns outright slavery.

As a former business manager I applaud this ruling. It is good for business and good for America.

As Judges Kozinski and Kleinfeld of the Ninth Circuit, and Justice Charles Fried of the Massachusetts Supreme Judicial Court, have observed, allowing any negative response by the accused to charges of discrimination to be classified as retaliation raises serious First Amendment issues.

If a complainant accuses someone of discrimination or harassment based on thinly grounded claims, the complainant should not be surprised when the accused takes umbrage, and should not expect the accused not to publicly defend him or herself or not to limit future interaction with the complainant.

Setting the bar low to what constitutes “retaliation” (treating all adverse commentary as retaliation) opens the door to retaliation claims based on consitutionally protected speech by the accused defending himself or herself, under the theory that such speech in opposition dissuades the complainant from bringing charges of discrimination. See, e.g., Bain v. City of Springfield.

That’s another reason to define retaliation more narrowly as Justice Alito does in his concurrence.

Well, a 4-4 split and a DIG have the identical practical effects: the decision below remains in place, but the action has no precedential value. However, a 4-4 split usually produces nothing more than a one-sentence order, while DIGs sometimes do produce concurrences and/or dissents. Breyer’s dissent suggested that some justices saw procedural or jurisdictional obstacles that would prevent them from reaching the merits.

It’s a pity this case didn’t produce a reversal, as there’s a pretty good argument that the Federal Circuit got it wrong.