Does Title VII prohibit 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? "Yes" answered the Sixth Circuit Court of Appeals in its decision Thompson v. North American Stainless, LP (decided March 31, 2008). This case appears to the first decision by a court of appeals holding unambiguously that a victim of third-party retaliation has a cause of action under Title VII.
The plaintiff, Thompson, was engaged to a co-worker, Regalado, an engagement well-known throughout the workplace, and she filed a gender discrimination charge with the EEOC. Slightly more than three weeks after the employer learned of Regalado's charge, it fired Thompson, her fiancee.
The Sixth Circuit reversed a summary judgment granted by the district court reasoning that allowing such third-party retaliation would undermine the purposes of Title VII. The court conceded that a literal reading of the applicable statutory language may not authorize a cause of action for third-party retaliation. However, the court likewise and correctly recognized that courts are charged, as the Supreme Court has observed on numerous occasions, to go beyond a statute's literal language when necessary to avoid a result at odds with its plain purpose. The purpose of Title VII's anti-retaliation provision, the court reasoned, was to prohibit employer actions that would dissuade a "reasonable worker" from filing a charge of or reporting on discrimination. Since firing a family member or other close association would likely have such effect, the court concluded that Title VII must be construed to authorize a direct cause of action for third-party retaliation.
As a practical matter, the Sixth Circuit's holding should not open a new avenue of potential liability for employers. Title VII's anti-retaliation provision prohibits conduct likely to deter a "reasonable worker" from making a charge or report of discrimination. An employee who has made a charge of discrimination and then has their spouse fired in retaliation would certainly have a cause of action for retaliation. It would seem to make little, if any, different then in terms of potential employer liability whether the cause of action for retaliation is by the third-party spouse or the employee who has made the discrimination charge.
Robert L. Abell
www.robertabelllaw.com
