Liar, Liar, Retaliation Claim on Fire: Egei v. Johnson: Protecting an Employee’s Right to Dishonesty (White Paper)

Authors

Sarah Applegate, University of Nebraska College of Law

Date of this Version

11-28-2017

Document Type

Article

Citation

Nebraska Law Bulletin (November 28, 2017)

Comments

Copyright 2017, the author

Abstract

The United States District Court for the District of Columbia incorrectly held that an employee who lies during a Title VII proceeding is protected from retaliation on the basis of his or her lies. A better approach to Title VII participation matters is to impose a requirement that the participation be in good faith with the burden on the employer to prove with clear and convincing evidence that the employee’s participation was bad faith. This approach follows the holdings of the 7th Circuit, imposing a good faith requirement on participation clause matters. However, the 7th Circuit also imposes a reasonableness requirement that is argued against.

A good faith requirement is consistent with the statutory language of Title’s VII participation clause, which did not protect bad faith participation. It is also consistent with the congressional intent behind the anti-retaliation provision and policy objectives. Employers should be able to punish their employees for their bad faith participation in a Title VII proceeding and set their “Liar, Liar, Retaliation Claims on Fire.”