On the final day of its 2009-2010 term, the United States Supreme Court agreed to hear a case involving the question of whether one individual may assert a Title VII retaliation claim based on someone else’s protected activity. In Thompson v. North America, 567 F.3d 804 (6th Cir. 2009), the court of appeals held that a fired employee lacked standing to bring a Title VII retaliation suit as the fiancé of a woman who had filed a discrimination suit against their mutual employer. In other words, the court held that close relational status alone is not enough to support a retaliation claim.
In his suit, Thompson claimed that the employer retaliated against him when it fired him three weeks after his fiancée brought a sex discrimination claim against the company. The employer claimed that he was fired for performance-based reasons. Thompson did not allege that he opposed the discrimination himself or that he participated in his fiancée’s charge against the company. The Sixth Circuit held that a plaintiff must engage in protected activity (i.e., opposing discrimination) in his or her own right or as an actual party to the case of another claimant. Although there is currently no split among federal circuit courts regarding third-party retaliation claims, the Supreme Court decided to consider the viability of such claims under Title VII.
While this case will not be briefed or argued until the next term begins in the fall, it should be on employers’ radars. The Supreme Court has considered attenuated retaliation claims several times in recent years and has consistently expanded the reach of such claims. See, e.g., Burlington N. & Santa Fe RR. Co. v. White, 548 U.S. 53 (2006) (retaliation need not involve employment action or occur in the workplace); Crawford v. Metro. Gov’t of Nashville and Davidson Cty., 129 S.Ct. 846 (2009) (“protected activity” need not be actual complaint of discrimination; sufficient that plaintiff alleged harassing conduct when questioned in investigation of co-worker’s complaint). If the Supreme Court continues to expand retaliation claims as it did in these lines of cases, and allows third-party retaliation claims, employers may expect to see an increase in retaliation claims.