Illusory Protection: The Fifth Circuit’s Misguided Interpretation of Title VII’s Anti-Retaliation Provision in Hernandez v. Yellow Transportation, Inc.

After Burlington Northern & Santa Fe Railway Co. v. White resolved the issue of what constitutes an “adverse action” under the Title VII anti-retaliation statute, the scope of employer liability was substantially broadened. The Supreme Court’s decision reinforced the broad intent behind the anti-retaliation statute and acknowledged the statute’s remedial purpose. The Fifth Circuit, however, has been reluctant to expand employer liability as evidenced through its interpretation of the “adverse action” prong relating to coworker harassment. More specifically, the Fifth Circuit’s “In Furtherance” standard, which is used to judge whether an employer is liable for coworker harassment in retaliation for an employee opposing unlawful employment activities, conflicts with the underlying purpose of the antiretaliation statute. No other circuit has such a stringent requirement and, unfortunately, the Fifth Circuit’s unique interpretation prevents many plaintiffs from obtaining justifiable relief. The Fifth Circuit applied this standard in Hernandez v. Yellow Transportation, Inc., which illustrated the frustrations surrounding the denial of John Ketterer’s retaliation claim. By reviewing other circuit courts’ analysis, legislative intent, Supreme Court precedent, and public policy, this Note explains how the Fifth Circuit’s interpretation of the anti-retaliation provision is misguided and proposes a simple solution to this intricate problem. INTRODUCTION 1430 I. DRUMROLL PLEASE: INTRODUCING THE “ANTI-RETALIATION” PROVISION 1434 A. The Origin of the Anti-retaliation Provision 1434 B. The Purpose of the Anti-retaliation Provision 1435 C. Procedural Details of Retaliation Claims Under Title VII 1437 * J.D., May 2014, University of Florida Levin College of Law; B.A., Economics & Anthropology, May 2011, Emory University. I would like to thank the staff and fellow members of the Florida Law Review for their hard work and dedication throughout the editing process. Without the combined effort of all members, this journal would not be where it is today. I would like to thank my family and Lisa Renee Fassett for their continued support throughout law school. Lastly, I would like to thank my note advisor, Mariko Shitama, for her advice, insight, and support throughout the entire note writing process. 1 Matthews: Illusory Protection: The Fifth Circuit’s Misguided Interpretation Published by UF Law Scholarship Repository, 2015 1430 FLORIDA LAW REVIEW [Vol. 66 II. IT’S A BIRD, IT’S A PLANE, IT’S BURLINGTON: BURLINGTON’S MUCH NEEDED GUIDANCE 1438 A. Pre-Burlington: A History of Circuit Court Inconsistency 1439 1. The “Ultimate Employment Actions” Standard 1439 2. The “Materially Adverse” Standard 1440 3. The “Deterrence” Standard 1440 B. Burlington Finally Resolves the “Adverse Action” Debate 1441 III. THE FIFTH CIRCUIT’S INTERPRETATION OF HERNANDEZ V. YELLOW TRANSPORTATION, INC. 1445 A. The Fifth Circuit’s Controversial Decision 1445 B. The Fifth Circuit’s Self-Inflicted Loneliness 1448 IV. THE FUNDAMENTAL PROBLEMS WITH THE FIFTH CIRCUIT’S “IN FURTHERANCE STANDARD” AND RECOMMENDATIONS FOR A PRACTICAL SOLUTION 1451 A. How the Standard Is Contrary to the Intent Behind the Anti-Retaliation Provision 1451 B. How Supreme Court Precedent Can Help 1452 C. The Fifth Circuit’s Glorified “Catch-22” 1452 D. A Practical Solution That Reflects Reality 1454 CONCLUSION 1454