In Thompson v. North American Stainless LP, in a rehearing by the Sixth Circuit en banc, the full Sixth Circuit held that, in order for a third-party to claim retaliation based on the protected activity of another, the third party must have actually engaged in protected activity of his own. In doing so, the Sixth Circuit joined the Third, Fifth, and Eighth Circuits in so ruling.

In Thompson, a woman filed a sex discrimination charge with the EEOC. Three weeks later, the employer terminated the woman’s fiancé, who also was employed by the company. 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 the EEOC filed an amicus (“friend of the court”) brief in support of associational retaliation claims.

In a 2-1 decision, a three-judge panel of the Sixth Circuit reversed, holding that “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.” The Court included the fiancé of an employee filing an EEOC charge in the newly-expanded protected class. In reaching its decision, the Sixth Circuit acknowledged that the plain language of Title VII does not support associational retaliation claims. The Court nonetheless ignored the text and looked to the “plain purpose of the statute,” reasoning, based on language in U.S. Supreme Court decisions, that the statute is intended to protect against any retaliatory action that might “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 full Sixth Circuit agreed to re-hear the case and vacated the decision of the three-judge panel. The Court reasoned that, because Thompson did not engage in any protected activity of his own (by making a complaint of Title VII discrimination or harassment or by testifying, participating in, or assisting in an investigation of another’s complaint), he could not state a claim for retaliation under Title VII. The en banc Sixth Circuit relied on the plain language of Title VII in finding that actual protected activity is required for a retaliation claim—in contrast to the three-judge panel’s decision that ignored the plain language of the statute. The Court found that not recognizing associational retaliation claims was consistent with the purpose of the statute because the retaliation is still actionable if the retaliated-against person actually engages in protective activity. In addition, the Court distinguished the recent Supreme Court decision in Crawford v. Metro Government of Nashville and Davidson County, which reversed the Sixth Circuit and held that the opposition clause did not require active, consistent behavior, by stating that Crawford involved involuntary testimony while Thompson did not engage in any protected activity at all.

This case should be seen as a victory for all employers. Retaliation is certainly one of the most dangerous and difficult employment law claims to avoid, especially when the complaining employee remains employed after the protected activity. This decision limits the scope of employees who could make a retaliation claim to the employee who actually engaged in protected activity—rather than the employee and the complaining employee’s sibling, parent, spouse, or fiancé. It should be noted that a petition for certiorari has been filed with the Supreme Court.