Employment and Labor Relations Lawyer & Attorney : Porter Wright's Employer Law Report : Employment Litigation, Non-Compete, Trade Secrets

As background, §1981 gives “all persons…the same right…to make and enforce contracts…as is enjoyed by white citizens” and applies in the employment context because the employment relationship is often considered contractual in nature. The plaintiff in this case, Hendrick Humphries, claimed that he was fired because he complained to managers that a co-employee was dismissed for race-based reasons. In its appeal brief, the defendant framed the question before the Court simply as: “Is a race retaliation claim cognizable under 42 U.S.C Sec. 1981?” The answer to that question, according to the Supreme Court, is yes. As a result of this decision, employers should be aware that employees now have one more potential claim in their arsenal when it comes to discriminatory or retaliatory treatment. It’s also important to note that retaliation claims under §1981 likely will not be subject to the filing deadlines and limits on damages imposed by Title VII.;

Likewise, in Gomez-Perez v. Potter, the Court held 6-3 that the ADEA prohibits retaliation against a federal employee who complains of age discrimination. The case involved a 45-year-old postal worker who claimed that she was subjected to various forms of retaliation, including a drastic reduction in hours, after she filed an administrative ADEA complaint. Section 633a(a) of the ADEA requires that “all personnel actions affecting [federal] employees…at least 40 years of age…be made free from any discrimination based on age.”

Relying on a rationale similar to that in CBOCS West, the Court settled a split among the circuits by holding that, despite no mention of “retaliation” in the statute’s prohibition of discrimination against federal employees based on age, such retaliation is prohibited. Notably, the Court acknowledged, but ultimately was not persuaded by, the “negative implication” argument – i.e., that §623(d) of the ADEA contains a specific prohibition on retaliation against ADEA complainants in the private sector but §633(a) contains no such provision for federal employees. In response to this argument, the Court noted that the two provisions were neither considered nor enacted simultaneously, thereby greatly diminishing the impact of that argument.

As in CBOCS West, the Court stressed that private rights of action for discrimination encompass rights of action for retaliation as well. Although this decision obviously has the most impact on claims by federal employees, it is further evidence of the Court’s willingness to expand the rights and potential claims of employees in the area of discrimination. 

In a 2-1 decision, 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 Sixth Circuit therefore concluded that retaliation against a family member would dissuade a reasonable employee from engaging in protected activity (in this case, filing an EEOC charge), thus meeting the Supreme Court’s definition of retaliation. The Sixth Circuit turned to the EEOC Compliance Manual for further support for its interpretation.

Not surprisingly, the majority’s decision prompted a lengthy dissent. In a nutshell, the dissent reasoned that, if Congress intended to protect third-parties from retaliation, it would have written the statute differently. Instead, Congress intended to protect only third-parties who participated, assisted, or testified in connection with another employee’s charge. Expanding retaliation claims in this way will, the dissent has predicted, lead to a flood of frivolous lawsuits for third-party retaliation.

It is unlikely the U.S. Supreme Court will long allow the split in circuits raised by the Thompson decision to stand, and additional guidance is likely. In fact, the Court recently heard arguments on retaliation cases under two different anti-discrimination statutes that provide it with an opportunity to shed additional light on this issue. Although the issues are not precisely the same, in CBOCS West v. Humphries, the Court must decide whether Section 1981 provides a cause of action for retaliation despite the fact that the statute is silent on the issue. Similarly, in Gomez-Perez v. Potter, the issue is whether the ADEA prohibits retaliation against federal workers despite not expressly providing such protection. Rulings in these cases should at least suggest how the Court is likely to resolve the split in circuits resulting from Thompson.

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.