Whether the term “employees” in Title VII § 704(a) includes former employees who allege retaliation occurring after their employment ended.
Holding
Yes. Section 704(a) protects former employees from postemployment retaliation by their former employers.
Reasoning
The statutory text did not supply a clear temporal limit. Section 704(a) prohibits an employer from discriminating against “any of his employees or applicants for employment” for engaging in protected Title VII activity, but it does not say that the person must be a current employee when retaliation occurs. Title VII's definition of “employee”—“an individual employed by an employer”—is likewise compatible with either a present or a past employment relationship.
Title VII uses “employees” in different ways depending on context. Its remedial provisions authorize reinstatement of employees, which necessarily concerns former employees, and its federal-sector provisions allow an employee to challenge discriminatory discharge and receive notice of the outcome, even though a discharged employee is no longer currently employed. Other provisions plainly concern current employees, such as provisions governing compensation and advancement. These varying uses establish that the word has no single, context-free temporal meaning.
The phrase “his employees” limits coverage to persons who had an employment relationship with the employer accused of retaliation; it does not establish when that relationship must have existed. Nor did Congress's separate reference to “applicants for employment” imply exclusion of former employees. Applicants are not simply “future employees,” because many applicants will never become employees and some future employees may not formally apply.
The broader statutory context strongly favored coverage of former employees. Title VII expressly prohibits discriminatory discharge, and a person challenging such a discharge will ordinarily be a former employee when filing the charge. It would be inconsistent to let an employer retaliate against that person for using the very Title VII process that addresses an unlawful discharge.
Excluding former employees would also undermine the central purpose of an antiretaliation provision: preserving unfettered access to statutory remedies. Employers could deter discrimination complaints through harmful postemployment acts, including negative job references, and could gain an incentive to discharge workers likely to assert Title VII claims. Including former employees prevents that gap in protection.