Over the next few days, I will be posting may paper on whether or not retaliation claims under Title VII should have access to the Price burden shifting scheme. This was originally completed for a law review competition.


            In 1989, the Supreme Court decided the case of Price Waterhouse v. Hopkins, [i]and introduced a scheme of burden shifting to discrimination cases. Since that time, the question of how far the scheme extends has plagued both the Supreme Court and the lower courts. In 1991, Congress amended the discrimination statute to partially codify the new scheme. However, the disparate method in which Congress chose to amend the statute gave rise to more questions than it answered. Later, the Supreme Court would again examine a discrimination case, this time an age based discrimination claim, now through the lens of the amended statute, and find that the selective amendment limited the scope of the Price scheme. Now, discrimination claims have access to the Pricescheme, while age discrimination claims do not. However, whether retaliation claims have a similar access is still undecided. To date, neither Congress nor the Supreme Court has provided definite guidance, and the lower courts are using the tools at hand to address the question, resulting in conflicting answers.

            The purpose of this note is to answer whether the Price scheme applies to retaliation claims. Part I of this note will examine the history of the Pricescheme, by looking at Price, the Congressional amendment, Gross,[ii]and examining the current circuit split with Smith[iii]and Hayes.[iv]Part II of this note will explore a proposed answer by Andrew Kenny and analyze the history of the problem in light of that answer. Part III argues that Kenny and the lower courts underestimate the impact of 1991 amendment, and by looking at the full scope of that amendment, the limit of the Price scheme is apparent, and does not control retaliation claims.

[i]           Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

[ii]           Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343, 2349 (2009).

[iii]          Smith v. Xerox Corp., 602 F.3d 320, 325-26 (5th Cir. 2010).

[iv]          Hayes v. Sebelius, 762 F. Supp. 2d 90 (D.D.C. 2011).