The opinion
SERCOMBE, P. J.,
dissenting.
With respect, I am unable to agree with the views of my colleagues and am compelled to dissent. I disagree with the test proposed by the majority for whether the “resort to other procedures” (ROP) provision in the collective bargaining agreement is lawful under 42 USC section 2000e-3(a). That statute makes it “an unlawful employment practice for an employer to discriminate against any * * * employee! ] * * * [who] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing.” On its face, the ROP provision “discriminates” against, or treats differently, employees who make a charge to the Equal Employment Opportunity Commission (EEOC) from those employees who do not complain. That different treatment is that the former group of employees loses a contractual right to grieve a discrimination claim and the latter group retains that right. There is little question that the contractual right to grieve a discrimination claim is significant, and the loss of that right of the union representing an employee would be adverse to the employee’s interests. Therefore, the ROP provision is unlawful as a matter of law because it penalizes the exercise of a federal statutory right by taking away a significant contractual right if the federal remedy is invoked.
That was the logic adopted by the Employment Relations Board (board) in the order under review. The board *119 relied on E.E.O.C. v. Board of Governors of State Colleges, 957 F2d 424 (7th Cir), cert den, 506 US 906 (1992), a case presenting a nearly identical question to the issue raised in this case. In Board of Governors of State Colleges, the EEOC challenged the legality of a ROP-type provision in a collective bargaining agreement between a university and its employees under an antiretaliation section of the Age Discrimination in Employment Act (ADEA). 957 F2d at 426. That part of the ADEA, 29 USC section 623 (d), provided:
“It shall be unlawful for an employer to discriminate against any of his employees * * * because such individual * * * has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this chapter.”
The EEOC questioned the lawfulness of Article 17.2 of the collective bargaining agreement, which read:
“If prior to filing a grievance hereunder, or while a grievance proceeding is in progress, an employee seeks resolution of the matter in any other forum, whether administrative or judicial, the Board or any University shall have no obligation to entertain or proceed further with the matter pursuant to this grievance procedure.”
Board of Governors of State Colleges, 957 F2d at 426.
The court found that application of Article 17.2 would necessarily violate the antiretaliation section of the ADEA:
“Under the collective bargaining agreement between the Board and the Union, an employee has a contractual right to an in-house grievance procedure. However, an employee loses that right if he files a charge of discrimination. Article 17.2 authorizes the Board to take an adverse employment action (termination of the in-house grievance proceeding) for the sole reason that the employee has engaged in protected activity (filing an ADEA claim). Under Article 17.2, an employee must forfeit his contractual right to a grievance proceeding, a condition of his employment, or surrender his legal right to participate in litigation under the ADEA.”
*120 Board of Governors of State Colleges, 957 F2d at 429-30. The court treated Article 17.2 as a retaliatory policy, and unlawful per se, without regard to the good faith of the university or the particular characteristics of an individual application of Article 17.2. Id. at 430-31.
The majority eschews this analysis, apparently reasoning that the loss of a contractual right to grieve a dispute is not an adverse employment action. The opinion assumes that the standard for assessing the legality of an employment policy under the antiretaliation section of Title VII of the Civil Rights Act of 1964, 42 USC section 2000e-3(a), is the same as the test used by courts to evaluate the validity of an individual claim for retaliation. See 240 Or App at 116. The test for an individual claim for retaliation is that an aggrieved employee must show that (1) the employee engaged in protected activity under the statute (“made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing”); (2) the employee experienced a materially adverse action, one that a reasonable employee would find materially adverse; and (3) the protected activity caused the adverse action. Somoza v. University of Denver, 513 F3d 1206, 1212 (10th Cir 2008).
In Burlington N. & S. F. R. Co. v. White, 548 US 53, 67 , 126 S Ct 2405 , 165 L Ed 2d 345 (2006), the Supreme Court determined that a materially adverse action could include actions “beyond workplace-related or employment-related retaliatory acts and harm.” However, in determining the “level of seriousness to which this harm must rise before it becomes actionable retaliation” and “to separate significant from trivial harms,” the Supreme Court explained that
“a reasonable employee would have [to find] the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”
Id. at 67-68 (citation and internal quotation marks omitted).
Based on Burlington N. & S. F. R. Co., the majority appears to conclude that enforcement of the ROP provision is not materially adverse to a reasonable employee because that employee “would not likely be dissuaded from filing a *121 discrimination complaint because an employer defends against the complaint by seeking to consolidate the resolution of the matter into one proceeding.” 240 Or App at 117. The majority seems to say that the board was wrong to find the ROP provision to be unlawful. But then it remands to see if the board agrees with its conclusion: “Because the board did not apply the standard of material adversity in determining whether Article 28.B.2 is unenforceable under 42 USC section 2000e-3(a), * * * we reverse and remand for reconsideration under the appropriate standard.” 240 Or App at 117-18 (footnote omitted).
In my view, there are a number of problems with that analysis. First, it is not clear what the majority is deciding — was the board wrong as a matter of law in concluding that loss of a grievance contract right is not “materially adverse” (because, as the majority concludes, an employee “would not likely be dissuaded from filing a discrimination complaint”) or must the board engage in some factfinding on remand in order to apply the “appropriate standard” (presumably whether a reasonable employee would be dissuaded from engaging in protected activity) in order to resolve the “materially adverse” issue?
Second, I am not persuaded that the same legal test is used to assess the legality of an employer policy under the antiretaliation statute as is used to determine whether an employee has a retaliation claim based on an a particular employer action. It seems to me that if an employer policy categorizes employees on a facially impermissible basis (those who engage in protected activities and those who do not) and then attaches any adverse consequence to those in the protected class as matter of course, that should be enough to vitiate the policy. Suppose an employer adopts a policy that all employees are to shun any of their colleagues who files an EEOC complaint during the week after that filing. In my view, that policy would be unlawful under 42 USC section 2000e-3(a) because it is targeted at the protected conduct, even if, in an individual case, the shunning might not have dissuaded a reasonable employee from filing the claim. I understand that the case law neither confirms nor precludes the employment policy/action distinction that I make.
*122 More importantly, however, in my view, there is no question that the loss of a bargained-for employment right in a collective bargaining agreement is both an adverse and material consequence under any test. It is adverse because it is the loss of an advantage — the right to an efficient and prompt dispute resolution mechanism — that is contractually secured. The loss is material because it is functionally significant as well as the result of collective bargaining. In 14 Penn Plaza LLC v. Pyett, _ US _, 129 S Ct 1456, 1464 , 173 L Ed 2d 398 (2009), the Supreme Court underscored the importance of grievance arbitration provisions in collective bargaining agreements:
“In this instance, the Union and the RAB, negotiating on behalf of 14 Penn Plaza, collectively bargained in good faith and agreed that employment-related discrimination claims, including claims brought under the ADEA, would be resolved in arbitration. This freely negotiated term between the Union and the RAB easily qualifies as a ‘conditio[n] or employment’ that is subject to mandatory bargaining under § 159(a) [of the National Labor Relations Act]. See Litton Financial Printing Div., Litton Business Systems, Inc. v. NLRB, 501 U.S. 190, 199 , 111 S. Ct. 2215 , 155 L. Ed. 2d 177 (1991) (‘[Arrangements for arbitration of disputes are a term or condition of employment and a mandatory subject of bargaining’); Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 578 , 80 S. Ct. 1347 , 4 L. Ed. 2d 1409 (1960) (‘[Arbitration of labor disputes under collective bargaining agreements is part and parcel of the collective bargaining process itself); Textile Workers v. Lincoln Mills of Ala., 353 U.S. 448, 455 , 77 S. Ct. 912 , 1 L. Ed. 2d 972 (1957) (‘Plainly the agreement to arbitrate grievance disputes is the quid pro quo for an agreement not to strike’).”
That context drawn by the Court illustrates that the bargained-for collective right to grieve discrimination claims is a valuable one; axiomatically, a valuable right will be prized by a reasonable employee in the sense of protecting that right from loss. That necessarily means that a reasonable employee might well be dissuaded from taking actions that result in the loss of valuable grievance rights, such as making or supporting a claim of discrimination. That legal quality of grievance rights — the quid pro quo for an agreement not to strike — necessarily makes the loss of those rights material for purposes of 42 USC section 2000e-3(a).
*123 I cannot support the majority’s conclusion that loss of grievance rights is immaterial or its instruction to the board to think about it some more. To me, the opposite conclusion is necessary, and the board’s order should be affirmed. For those reasons, I dissent.