Update regarding an issue we’ve previously blogged about. The Eighth Circuit assumed without deciding that individuals can sue for retaliation or discrimination under Title VII based on their association with a member of a protected class.

The Second, Fifth, Sixth and Eleventh Circuits have explicitly ruled the statute permits “associational discrimination” claims. Following a ruling from the U.S. District Court for the Eastern District of Arkansas, in Hutton v. Maynard, the Eighth Circuit assumed without deciding that Herman Hutton, the white former police chief of England, Arkansas, engaged in legally protected conduct when he sought to promote a black woman to a supervisory position. As the Court put it, “It is unclear whether Hutton also attempted to assert a claim of associational race discrimination separate and distinct from his claim that he was terminated in retaliation for seeking to promote an African American staff member. Even if he did, our analysis would not change. Hutton’s desire to promote an African American is the only ‘association’ he asserts and is the only purported statutorily protected activity at issue.” (Emphasis supplied.) (Ultimately the Court concluded that Hutton could not connect that conduct to the decision to fire him.)

We’ll continue to monitor this issue, but the trend looks like it’s moving towards recognizing associational discrimination as a viable Title VII claim nationwide.