Sixth Circuit Expands Group of Persons Protected from Title VII Retaliation to Friends and Family of the Charging Party
In Thompson v. North American Stainless LP, a divided Sixth Circuit panel expanded the class of persons protected from retaliation to include associated third-parties. In so doing, the Sixth Circuit created a split among the federal appellate circuits to have weighed in on this issue: the Sixth Circuit now expressly allows associational retaliation claims, and the Third, Fifth, and Eighth Circuits have expressly rejected them.
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.
In Thompson, a woman filed a sex discrimination charge with the EEOC. Three weeks later, the employer terminated the woman's fiance, who it also employed. The fiance filed his own EEOC charge and, eventually, a lawsuit, and alleged that his termination amounted to retaliation for his fiance'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, 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.
