OCTOBER TERM, 1996
Syllabus
ROBINSON
v. SHELL OIL CO.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT
No. 95-1376. Argued November 6, 1996-Decided February 18,
1997
After he was fired by respondent, petitioner filed an employment
discrimination charge with the Equal Employment Opportunity
Commission (EEOC) under Title VII of the Civil Rights Act of 1964.
While that charge was pending, petitioner applied for a job with
another company, which contacted respondent for an employment
reference. Claiming that respondent gave him a negative reference
in retaliation for his having filed the EEOC charge, petitioner
filed suit under § 704(a) of Title VII, which makes it unlawful
"for an employer to discriminate against any of his employees or
applicants for employment" who have availed themselves of Title
VII's protections. The District Court dismissed the action, and the
en banc Fourth Circuit affirmed, holding that the term "employees"
in § 704(a) refers only to current employees and therefore
petitioner's claim was not cognizable under Title VII.
Held: Because the term "employees," as used in § 704(a)
of Title VII, includes former employees, petitioner may sue
respondent for its allegedly retaliatory postemployment actions.
Pp. 340-346.
(a) Consideration of the statutory language, the specific
context in which it is used, and the broader context of Title VII
as a whole leads to the conclusion that the term "employees" in §
704(a) is ambiguous as to whether it excludes former employees.
First, there is no temporal qualifier in § 704(a) such as would
make plain that it protects only persons still employed at the time
of the retaliation. Second, § 701(f)'s general definition of
"employee" likewise lacks any temporal qualifier and is consistent
with either current or past employment. Third, a number of other
Title VII provisions, including §§ 706(g)(1), 717(b), and 717(c),
use the term "employees" to mean something more inclusive or
different from "current employees." That still other sections use
the term to refer unambiguously to a current employee, see,
e. g., §§ 703(h), 717(b), at most demonstrates that the term
may have a plain meaning in the context of a particular section-not
that it has the same meaning in all other sections and in all other
contexts. Once it is established that "employees" includes former
employees in some sections, but not in others, the term standing
alone is necessarily ambiguous and each section must be analyzed to
determine whether the context gives the term a definite meaning.
Pp. 340-345.
338
Syllabus
(b) A holding that former employees are included within §
704(a)'s coverage is more consistent with the broader context
provided by other Title VII sections and with § 704(a)'s primary
purpose of maintaining unfettered access to Title VII's remedial
mechanisms. As noted, several sections of the statute plainly
contemplate that former employees will make use of Title VII's
remedial mechanisms. These include § 703(a), which prohibits
discriminatory "discharge." Insofar as § 704(a) expressly protects
employees from retaliation for filing a "charge," and a charge
under § 703(a) alleging unlawful discharge would necessarily be
brought by a former employee, it is far more consistent to include
former employees within the scope of "employees" protected by §
704(a). This interpretation is supported by the arguments of
petitioner and the EEOC that exclusion of former employees from §
704(a) would undermine Title VII's effectiveness by allowing the
threat of postemployment retaliation to deter victims of
discrimination from complaining to the EEOC, and would provide a
perverse incentive for employers to fire employees who might bring
Title VII claims. Pp. 345-346.
70 F.3d
325, reversed.
THOMAS, J., delivered the opinion for a unanimous Court.
Allen M. Lenchek argued the cause for petitioner. With him on
the briefs were Eric Schnapper, Elaine R. Jones, Theodore M. Shaw,
Norman J. Chachkin, and Charles Stephen Ralston.
Paul R. Q. Wolfson argued the cause for the United States et al.
as amici curiae urging reversal. With him on the brief were
Solicitor General Days, Assistant Attorney General Patrick, Deputy
Solicitor General Bender, C. Gregory Stewart, and Gwendolyn Young
Reams.
L. Chris Butler argued the cause for respondent. With him
on the brief was
Patricia McHugh Lambert. *
*Briefs of amici curiae urging reversal were filed for the
Lawyers' Committee for Civil Rights Under Law et al. by Paul C.
Saunders, Marc L. Fleischaker, Norman Redlich, Barbara R. Arnwine,
Thomas J. Henderson, Richard T. Seymour, Teresa A. Ferrante, Cathy
Ventrell-Monsees, Dennis Courtland Hayes, Judith H. Lichtman, Donna
R. Lenhoff, Helen
339
JUSTICE THOMAS delivered the opinion of the Court. Section
704(a) of Title VII of the Civil Rights Act of 1964 makes it
unlawful "for an employer to discriminate against any of his
employees or applicants for employment" who have either availed
themselves of Title VII's protections or assisted others in so
doing. 78 Stat. 257, as amended, 42 U. S. C. § 2000e-3(a). We are
asked to decide in this case whether the term "employees," as used
in § 704(a), includes former employees, such that petitioner may
bring suit against his former employer for postemployment actions
allegedly taken in retaliation for petitioner's having filed a
charge with the Equal Employment Opportunity Commission (EEOC). The
United States Court of Appeals for the Fourth Circuit, sitting en
bane, held that the term "employees" in § 704(a) referred only to
current employees and therefore petitioner's claim was not
cognizable under Title VII. We granted certiorari, 517 U. S. 1154
(1996), and now reverse.
I
Respondent Shell Oil Co. fired petitioner Charles T. Robinson,
Sr., in 1991. Shortly thereafter, petitioner filed a charge with
the EEOC, alleging that respondent had discharged him because of
his race. While that charge was pending, petitioner applied for a
job with another company. That company contacted respondent, as
petitioner's former employer, for an employment reference.
Petitioner claims that respondent gave him a negative reference in
retaliation for his having filed the EEOC charge.
L. Norton, Stephen R. Shapiro, Sara L. Mandelbaum, and Martha F.
Davis; and for the National Employment Lawyers Association by
Douglas A. Hedin and Robert Belton.
Briefs of
amici curiae urging affirmance were filed for
the Equal Employment Advisory Council by
Robert E. Williams
and
Ann Elizabeth Reesman; and for the Washington Legal
Foundation by J.
Thomas Kilpatrick, Daniel J.
Popeo,
and
Paul D. Kamenar.
340
Petitioner subsequently sued under § 704(a), alleging
retaliatory discrimination. On respondent's motion, the District
Court dismissed the action, adhering to previous Fourth Circuit
precedent holding that § 704(a) does not apply to former employees.
Petitioner appealed, and a divided panel of the Fourth Circuit
reversed the District Court. The Fourth Circuit granted rehearing
en bane, vacated the panel decision, and thereafter affirmed the
District Court's determination that former employees may not bring
suit under § 704(a) for retaliation occurring after termination of
their employment.
70 F.3d
325 (1995).
We granted certiorari in order to resolve a conflict among the
Circuits on this issue.1
II A
Our first step in interpreting a statute is to determine whether
the language at issue has a plain and unambiguous meaning with
regard to the particular dispute in the case. Our inquiry must
cease if the statutory language is unambiguous and "the statutory
scheme is coherent and consistent."
United States v.
Ron
Pair Enterprises, Inc., 489 U. S. 235, 240
(1989); see also
Connecticut Nat. Bank v.
Germain,
503 U. S. 249, 253-254 (1992).
1 The other Courts of Appeals to have considered this issue have
held that the term "employees" in § 704(a) does include former
employees. See
Charlton v.
Paramus Bd. of Educ.,
25 F.3d
194, 198-200
(CA3), cert. denied, 513 U. S. 1022 (1994);
Bailey v.
USX Corp., 850 F.2d
1506, 1509 (CAll 1988);
O'Brien v.
Sky Chefs,
Inc., 670 F.2d
864, 869 (CA9 1982), overruled on other grounds by
Atonio v.
Wards Cove Packing Co., 810 F. 2d 1477,
1481-1482 (CA9 1987) (en bane);
Pantchenko v. C.
B. Dolge
Co., 581 F.2d
1052, 1055 (CA2 1978);
Rutherford v.
American Bank of
Commerce, 565 F.2d
1162, 1165 (CAW 1977). The Fourth Circuit indicated that it
joined the approach taken by the Seventh Circuit in
Reed v.
Shepard, 939 F.2d
484, 492-493 (1991). But the Seventh Circuit has since
repudiated the Fourth Circuit's view of
Reed. See
Veprinsky v.
Fluor Daniel, Inc., 87 F.3d
881, 886 (1996).
341
The plainness or ambiguity of statutory language is determined
by reference to the language itself, the specific context in which
that language is used, and the broader context of the statute as a
whole.
Estate of Cowart v.
Nicklos Drilling Co.,
505 U. S. 469,
477 (1992);
McCarthy v.
Bronson, 500 U. S. 136, 139
(1991). In this case, consideration of those factors leads us to
conclude that the term "employees," as used in § 704(a), is
ambiguous as to whether it excludes former employees.
At first blush, the term "employees" in § 704(a) would seem to
refer to those having an existing employment relationship with the
employer in question. Cf.
Walters v.
Metropolitan Ed.
Enterprises, Inc., ante, at 207-208 (interpreting the term
"employees" in § 701(b), 42 U. S. C. § 2000e(b)). This initial
impression, however, does not withstand scrutiny in the context of
§ 704(a). First, there is no temporal qualifier in the statute such
as would make plain that § 704(a) protects only persons still
employed at the time of the retaliation. That the statute could
have expressly included the phrase "former employees" does not aid
our inquiry. Congress also could have used the phrase "current
employees." But nowhere in Title VII is either phrase used-even
where the specific context otherwise makes clear an intent to cover
current or former employees.2 Similarly, that other statutes have
been more specific in their coverage of "employees" and
2 Our recent decision in
Walters v.
Metropolitan Ed.
Enterprises, Inc., ante, p. 202, held that the term "employees"
in § 701(b), 42 U. S. C. § 2000e(b), referred to those persons with
whom an employer has an existing employment relationship. See
ante, at 207-208. But § 701(b) has two significant temporal
qualifiers. The provision, which delimits Title VII's coverage,
states that the Act applies to any employer "who
has fifteen
or more employees
for each working day in each of twenty or
more calendar weeks in the current or preceding calendar year." 42
U. S. C. § 2000e(b) (emphasis added). The emphasized words specify
the time frame in which the employment relationship must exist, and
thus the specific context of that section did not present the
particular ambiguity at issue in the present case.
342
"former employees," see,
e. g., 2 U. S. C. § 1301(4)
(1994 ed., Supp. I) (defining "employee" to include "former
employee"); 5 U. S. C. § 1212(a)(1) (including "employees, former
employees, and applicants for employment" in the operative
provision), proves only that Congress
can use the
unqualified term "employees" to refer only to current employees,
not that it did so in this particular statute.
Second, Title VII's definition of "employee" likewise lacks any
temporal qualifier and is consistent with either current or past
employment. Section 701(f) defines "employee" for purposes of Title
VII as "an individual employed by an employer." 42 U. S. C. §
2000e(f). The argument that the term "employed," as used in §
701(f), is commonly used to mean "[p]erforming work under an
employer-employee relationship," Black's Law Dictionary 525 (6th
ed. 1990), begs the question by implicitly reading the word
"employed" to mean
"is employed." But the word "employed" is
not so limited in its possible meanings, and could just as easily
be read to mean
"was employed."
Third, a number of other provisions in Title VII use the term
"employees" to mean something more inclusive or different from
"current employees." For example, §§ 706(g)(1) and 717(b) both
authorize affirmative remedial action (by a court or EEOC,
respectively) "which may include ... reinstatement or hiring of
employees." 42 U. S. C. §§ 2000e5(g)(1) and 2000e-16(b). As
petitioner notes, because one does not "reinstat[e]" current
employees, that language necessarily refers to former employees.
Likewise, one may hire individuals
to be employees, but one
does not typically hire persons who already
are
employees.
Section 717(b) requires federal departments and agencies to have
equal employment opportunity policies and rules, "which shall
include a provision that an employee or applicant for employment
shall be notified of any final action taken on any complaint of
discrimination filed by him thereunder." 42 U. S. C. § 2000e-16(b).
If the complaint involves
343
discriminatory discharge, as it often does, the "employee" who
must be notified is necessarily a former employee. Similarly, §
717(c) provides that an "employee or applicant for employment, if
aggrieved by the final disposition of his complaint, ... may file a
civil action .... " 42 U. S. c. § 2000e-16(c). Again, given that
discriminatory discharge is a forbidden "personnel actio[n]
affecting employees," see § 717(a), 42 U. S. C. § 2000e-16(a), the
term "employee" in § 717(c) necessarily includes a former employee.
See
Loeffler v.
Frank, 486 U. S. 549 (1988)
(involving a discriminatory discharge action successfully brought
under § 717 by a former Postal Service employee).3
Of course, there are sections of Title VII where, in context,
use of the term "employee" refers unambiguously to a current
employee, for example, those sections addressing salary or
promotions. See § 703(h), 42 U. S. C. § 2000e-2(h) (allowing
different standards of compensation for "employees who work in
different locations"); § 717(b), 42 U. S. C. § 2000e16(b)
(directing federal agencies to establish a plan "to provide a
maximum opportunity for employees to advance so as to perform at
their highest potential").
But those examples at most demonstrate that the term "employees"
may have a plain meaning in the context of a particular section-not
that the term has the same meaning in all other sections and in all
other contexts. Once it is established that the term "employees"
includes former employees in some sections, but not in others, the
term standing alone is necessarily ambiguous and each section must
be ana-
3 Other sections also seem to use the term "employees" to mean
something other than current employees. Section 701(c) defines
"employment agency" as "any person regularly undertaking ... to
procure employees for an employer or to procure for employees
opportunities to work for an employer .... " 42 U. S. C. §2000e(c).
This language most naturally is read to mean "prospective
employees." Section 701(e) uses identical language when providing
that a labor organization affects commerce if it "operates a hiring
hall or hiring office which procures employees for an employer ....
" 42 U. S. C. §2000e(e).
344
lyzed to determine whether the context gives the term a further
meaning that would resolve the issue in dispute.4
Respondent argues that the addition of the word "his" before
"employees" narrows the scope of the provision. Brief for
Respondent 19. That argument is true, so far as it goes, but it
does not resolve the question before us-namely, in what time frame
must the employment relationship exist. The phrase "his employees"
could include "his" former employees, but still exclude persons who
have never worked for the particular employer being charged with
retaliation.
Nor are we convinced by respondent's argument that Congress'
inclusion in § 704(a) of "applicants for employment" as persons
distinct from "employees," coupled with its failure to include
"former employees," is evidence of congressional intent not to
include former employees. The use of the term "applicants" in §
704(a) does not serve to confine, by negative inference, the
temporal scope of the term "employees." Respondent's argument rests
on the incorrect premise that the term "applicants" is equivalent
to the phrase "future employees." But the term "applicants" would
seem to cover many persons who will not become employees.
Unsuccessful applicants or those who turn down a job offer, for
example, would have been applicants, but not future employees. And
the term fails to cover certain future employees who may be offered
and will accept jobs without having to apply for those jobs.
Because the term "applicants" in § 704(a) is not synonymous with
the phrase "future employees," there is no basis for engaging in
the further (and questionable) negative infer-
4 Petitioner's examples of non- Title VII cases using the term
"employee" to refer to a former employee are largely irrelevant,
except to the extent they tend to rebut a claim that the term
"employee" has some intrinsically plain meaning. See,
e. g.,
Richardson v.
Belcher, 404 U. S. 78,81,83 (1971)
(unemployed disabled worker);
Nash v.
Florida Industrial
Comm'n, 389 U. S. 235, 239 (1967) (individual who had been
fired);
Flemming v.
Nestor, 363 U. S. 603, 611 (1960)
(retired worker).
345
ence that inclusion of the term "applicants" demonstrates
intentional exclusion of former employees.
Finally, the use of the term "individual" in § 704(a), as well
as in § 703(a), 42 U. S. C. § 2000e-2(a), provides no meaningful
assistance in resolving this case. To be sure, "individual" is a
broader term than "employee" and would facially seem to cover a
former employee. But it would also encompass a present employee as
well as other persons who have never had an employment relationship
with the employer at issue. The term "individual," therefore, does
not seem designed to capture former employees, as distinct from
current employees, and its use provides no insight into whether the
term "employees" is limited only to current employees.
B
Finding that the term "employees" in § 704(a) is ambiguous, we
are left to resolve that ambiguity. The broader context provided by
other sections of the statute provides considerable assistance in
this regard. As noted above, several sections of the statute
plainly contemplate that former employees will make use of the
remedial mechanisms of Title VII. See
supra, at 342-343.
Indeed, § 703(a) expressly includes discriminatory "discharge" as
one of the unlawful employment practices against which Title VII is
directed. 42 U. S. C. § 2000e-2(a). Insofar as § 704(a) expressly
protects employees from retaliation for filing a "charge" under
Title VII, and a charge under § 703(a) alleging unlawful discharge
would necessarily be brought by a former employee, it is far more
consistent to include former employees within the scope of
"employees" protected by § 704(a).
In further support of this view, petitioner argues that the word
"employees" includes former employees because to hold otherwise
would effectively vitiate much of the protection afforded by §
704(a). See Brief for Petitioner 20-30. This is also the position
taken by the EEOC. See Brief for
346
United States and EEOC as
Amici Curiae 16-25; see also 2
EEOC Compliance Manual §614.7(f). According to the EEOC, exclusion
of former employees from the protection of § 704(a) would undermine
the effectiveness of Title VII by allowing the threat of
postemployment retaliation to deter victims of discrimination from
complaining to the EEOC, and would provide a perverse incentive for
employers to fire employees who might bring Title VII claims. Brief
for United States and EEOC as
Amici Curiae 18-21.
Those arguments carry persuasive force given their coherence and
their consistency with a primary purpose of antiretaliation
provisions: Maintaining unfettered access to statutory remedial
mechanisms. Cf.
NLRB v.
Scrivener, 405 U. S. 117, 121-122
(1972) (National Labor Relations Act);
Mitchell v.
Robert
DeMario Jewelry, Inc., 361 U. S. 288, 292293
(1960) (Fair Labor Standards Act). The EEOC quite persuasively
maintains that it would be destructive of this purpose of the
antiretaliation provision for an employer to be able to retaliate
with impunity against an entire class of acts under Title VII-for
example, complaints regarding discriminatory termination. We agree
with these contentions and find that they support the inclusive
interpretation of "employees" in § 704(a) that is already suggested
by the broader context of Title VII.
III
We hold that the term "employees," as used in § 704(a) of Title
VII, is ambiguous as to whether it includes former employees. It
being more consistent with the broader context of Title VII and the
primary purpose of § 704(a), we hold that former employees are
included within § 704(a)'s coverage. Accordingly, the decision of
the Fourth Circuit is reversed.
It is so ordered.
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