In April 2008, I reported that a divided three-judge panel of the Sixth Circuit in Thompson v. North American Stainless LP held that an employee may sue for retaliatory acts against him by his employer in response to protected activity by a related employee—a close friend or family member. This decision was in contrast to the decisions of the Third, Fifth, and Eighth Circuits rejecting associational retaliation claims. After rehearing en banc by the Sixth Circuit (by the entire court), the Court joined its sister circuits in rejecting a cause of action for associational retaliation in a narrowly-divided opinion.
In Thompson, a woman filed a sex discrimination charge with the EEOC. Three weeks later, the employer terminated the woman’s fiancé, who it also employed. The fiancé filed his own EEOC charge and, eventually, a lawsuit, and alleged that his termination amounted to retaliation for his fiancé’s EEOC charge. In response, the employer argued, among other things, that there is no cause of action under Title VII for retaliation against associated third-parties. The trial court agreed and dismissed the case. The plaintiff appealed, and a divided three-judge panel of the Sixth Circuit reversed and held that Title VII provides a cause of action for retaliation in response to a related employee’s protected activity. The court defined this new cause of action stating, “Title VII prohibit[s] employers from taking retaliatory action against employees not directly involved in protected activity but who are so closely related to or associated with those who are directly involved, that it is clear that the protected activity motivated the employer’s action.” (Emphasis added.) In so holding, the panel closely examined the Supreme Court’s definition of “retaliation”—that which would “dissuade a reasonable worker from making or supporting a charge of discrimination.” (Quoting the U.S. Supreme Court’s decision in Burlington Northern and Santa Fe Railway Co. v. White, 126 S.Ct. 2405 (2006).)
The Sixth Circuit in rehearing en banc reversed. As in the earlier decision before the Sixth Circuit panel, the EEOC filed an amicus (“friend of the court”) brief in support of associational retaliation claims. The en banc Sixth Circuit declined to adopt the EEOC’s position. In reversing the panel’s decision, the Court relied on the plain language of the statute limiting the class of persons authorized to sue for retaliation to those who opposed an unlawful employment practice; made a charge; or testified, assisted, or participated in any manner in an investigation, proceeding, or hearing (so-called “protected activity”). The Court rejected the plaintiff’s argument that close friends and family members who did not engage in protected activity themselves are nonetheless included within the class of persons authorized to sue for retaliation under Title VII. The Court held that an associated employee will only have a cause of action for retaliation resulting from a friend or family member’s complaint of discrimination or harassment when the associated employee himself has engaged in protected activity by opposing the practice or participating in the complaint or investigation—i.e. engaged in some protected activity of his own. The Court did note that the plaintiff’s fiancé, the employee who made the original sex discrimination charge, could have filed a retaliation complaint herself alleging that the termination of her fiancé in response to her protected activity, filing a charge, was an adverse employment action against her. It is unclear in this case why she did not do so. But it is interesting to note that it is unclear what type of remedy she would have been able to seek in such an action: Reinstatement of her fiancé? Or back pay or front pay on her fiancé’s behalf? The Court does not answer this question in Thompson.
Judge White dissented arguing that Title VII’s use of the term “aggrieved person” in the retaliation provision of the statute broadens the scope of retaliation actions to include those “aggrieved,” including associated family and friends of the complaining party. The majority rejected this view, holding that the use of aggrieved person in the statute defines the scope of standing for Title VII actions, not necessarily the class of persons authorized to sue. Judge Martin separately dissented arguing that “opposition” of a discriminatory practice necessarily included unexpressed opposition, such as the type of opposition held by close friends and family members of an employee faced with a discriminatory practice by their shared employer. The majority, however, interpreted Title VII as requiring actual action to qualify as protected activity under the statute, not mere unexpressed opposition or disagreement with an employment decision or practice.
Despite the views of the Third, Fifth, Eighth, and now Sixth Circuits rejecting associational discrimination, the EEOC takes the view that Title VII prohibits associational retaliation. Even though the Sixth Circuit rejected associational retaliation claims, such claims could be actionable if an associated employee shows that he did something to “oppose” the discrimination against or “participate” in the complaint or charge by the other related employee. It is likely that the Supreme Court will weigh in on this issue in the near future. As I stated in my prior post, until then, employers should be aware of the potential for third-party retaliation claims and take steps to protect themselves from liability. In particular, when faced with an EEOC charge or discrimination complaint from an employee who is associated with or related to other employees in the employer’s workforce, the employer should proceed cautiously in making any hiring, promotion, discipline, or termination decisions.