You and your spouse (or significant other) work for the same employer. Your spouse files a charge of unlawful discrimination against your employer with the Equal Employment Opportunity Commission (EEOC), testifies or participates in another employee’s EEOC charge, or voices opposition to an unlawful discriminatory practice (actions commonly referred to as “protected activity”). Then, based on your spouse’s opposition or participation, your employer terminates you despite the fact that you have done nothing to support your spouse’s protected activity. Can you pursue a retaliation claim against your employer under Title VII?1 The answer is no according to the Sixth Circuit Court of Appeals, the federal appeals court that governs Ohio.
In Thompson v. North American Stainless, LP, a female employee filed a discrimination charge with the EEOC. The employer then terminated the employee’s fiancé (Thompson) who also worked for the employer. Thompson filed a retaliation claim, but he did not allege that he had opposed any unlawful employment practice under Title VII or that he had testified, assisted, or participated in a proceeding related to his fiancé’s EEOC charge. By a 10-6 vote, the Sixth Circuit decided that an employee pursuing a Title VII retaliation claim must show that the employer discriminated against him because he opposed an unlawful employment practice protected by Title VII or because he made a charge, testified, assisted, or participated in a proceeding related to an unlawful employment practice under Title VII. In other words, an employee that has an association with an individual that engaged in protected action, but does not himself engage in protected action, cannot assert a retaliation claim under Title VII.
Although this is good news for employers, it is important to keep in mind that the Thompson holding only precludes a cause of action for what the Court called a “passive bystander.” Thus, Thompson could have pursued a claim if he had alleged that he personally engaged in some opposition or participation conduct in support of his fiancé.
Despite the fact that six judges disagreed with the reasoning and result of the majority opinion, all of the judges agreed on one thing – Thompson’s fiancé, who filed the original EEOC charge, could pursue a retaliation claim if she believed that she was the target of Thompson’s termination. Such a claim was authorized by the United States Supreme Court three years ago in Burlington Northern & Santa Fe Ry. Co. v. White. In Burlington, the Court concluded that Title VII’s anti-retaliation provision protects an employee who engages in protected activity from an employer’s conduct that could dissuade a reasonable employee from making or supporting a charge of discrimination. Most of us would agree that a reasonable employee could be dissuaded from making or supporting a charge of discrimination if she knew or had a reasonable basis to believe that her employer would terminate her fiancé in response to her protected activity.
Thompson is binding only upon the federal courts in Ohio, Michigan, Kentucky, and Tennessee. But Ohio’s state courts may follow the reasoning in this case, especially since the language in Ohio’s retaliation statute mirrors Title VII’s retaliation language.
In the end, employers must always carefully consider taking any employment action that might have some relation to an employee’s complaint of unlawful discrimination. Even when contemplating taking action against a passive bystander, an employer should consider whether such an employment action could be seen as targeting an employee who has opposed an unlawful employment practice protected by Title VII or made a charge, testified, assisted, or participated in a proceeding related to an unlawful employment practice under Title VII. Employers will benefit from consultation with legal counsel before taking an employment action to ensure that the concerns related to potential retaliation claims are fully examined.