Beyond Abercrombie and Heffernan : Toward a Uniform Approach to Discrimination and Retaliation Claims Based on Misperception Theory in the Employment Context

This article argues that the Supreme Court's decisions in Abercrombie and Heffernan, which were correctly decided, should apply to all misperception claims under federal anti-discrimination and anti-retaliation provisions, respectively, and, although the Supreme Court did not do so when it decided the second of the two cases, should be read together to create a uniform standard for misperception claims in the employment context.Part II of the article will discuss the Court's opinion in Abercrombie, summarizing the Court's Title VII discrimination decision, discussing whether the decision involved misperception or actual discrimination, but arguing that, under either categorization, the Court's focus on employer motivation should cause the decision to apply to religious discrimination cases and most failure to accommodate religion cases based on misperception under Title VII and further arguing that the decision should apply to all misperception discrimination cases under that statute. Part III will discuss the Court's opinion in Heffernan, likewise summarizing the Court's retaliation decision under § 1983 and the First Amendment and likewise arguing that the decision should apply to all misperception retaliation cases under federal statutory anti-retaliation statutes. Part IV will argue that, as a natural next step in extending the reach of Abercrombie and Heffernan within their anti-discrimination and anti-retaliation domains, courts should integrate the two decisions to establish a unified standard for analyzing employee misperception claims under federal discrimination and retaliation law. Part V will delineate that unified standard, which will focus on the language of the germane statutory or constitutional antidiscrimination or anti-retaliation provision and the public policy rationale underlying the provision. The article will conclude by calling for courts to adopt and apply this unified standard going forward