Two recent Sixth Circuit cases have recognized new forms of retaliation under Title VII: coworker retaliation and “associational” retaliation. These forms of retaliation should be covered during supervisor training sessions, and employers should be proactive in obtaining the advice of counsel should allegations of coworker or associational retaliation arise.
Employer Can Be Liable for Coworker Retaliation Under Title VII
In Hawkins v. Anheuser-Busch, Inc., the Sixth Circuit recognized a Title VII claim against an employer for coworker retaliation. Specifically, an employer will be liable for a coworker’s actions if:
(1) The coworker’s retaliatory conduct is sufficiently severe so as to dissuade a reasonable worker from making or supporting a charge of discrimination;
(2) Supervisors or members of management have actual or constructive knowledge of the coworker’s retaliatory behavior; and
(3) Supervisors or members of management have condoned, tolerated or encouraged the acts of retaliation, or have responded to the plaintiff’s complaints so inadequately that the response manifests indifference or unreasonableness under the circumstances.
“Related or Associated Third Party” Employee Can Bring Title VII Retaliation Claim
In Thompson v. North American Stainless, LP, the Sixth Circuit recognized that a Title VII retaliation claim can be brought by an employee who does not engage in any protected activity but is a family member or “associated” third party of someone who engaged in protected activity. In this case, the plaintiff and his fiancée worked for a common employer and the employer terminated the plaintiff’s employment after his fiancée filed a discrimination charge against the employer. The dissenting opinion observed that “before today, no circuit court of appeals has held that Title VII creates a claim for third-party retaliation.”