Justice Souter's opinion in fact was quite harsh in characterizing the position of the employer, its amici support and the 6th Circuit panel which wrote the appealed decision, holding "nothing in the statute requires a freakish rule ...."
Justice Alito, joined by Justice Thomas felt it necessary to try to confine Justice Souter's holding by noting in his concurrence:
The question whether the opposition clause shields employees who do not communicate their views to their employers through purposive conduct is not before us in this case; the answer to that question is far from clear; and I do not understand the Court’s holding to reach that issue here.Justice Alito was concerned about the impact of Justice Souter's words:
The case was decided under the opposition as opposed to the participation clause, because the employer's investigation was based on an internal complaint rather than an EEOC charge. Whether that was too limited a view of the participation clause was not addressed by the Court, but given the Court's consistent holdings in retaliation cases, if you were a betting person, you should probably guess that if asked, this Court would say yes it was.
And we would call it "opposition" if an employee took a stand against an employer’s discriminatory practices not by "instigating" action, but by standing pat, say, by refusing to follow a supervisor’s order to fire a junior worker for discriminatory reasons.
Besides reaffirming that this Court is a firm supporter of protection against retaliation, it also makes it more likely that employers will find retaliation raised in more cases. Employees, suffering an adverse employment action (a burdened lessened three years ago in Burlington Northern v. White) now have a lower burden in claiming that at some point they had "opposed" an unlawful practice.
Although Justice Alito argues that "opposition" still requires more than silence, it is by no means certain that view will ultimately carry the day. And today's decision makes it much more likely that cases presenting that precise question will be forthcoming.