Wednesday, June 10, 2009

Fire the Fiancé - Third Party Retaliation Claims

If an employee files an employment discrimination complaint with the EEOC, employers are prohibited from retaliating against the employee... but the statute doesn't say anything about firing the employee's fiancé!

Thompson v. North American Stainless, LP, __ F.3d ___, 2009 WL 1563443 (6th Cir. 2009). The Sixth Circuit, sitting en banc (16 judges!), delivered the opinion on June 5, 2009.

Does Title VII create "a cause of action for third-party retaliation for persons who have not personally engaged in protected activity?"

  • Plaintiff, Eric Thompson, worked for Defendant, North American Stainless ("Stainless"), from 1997-2003.
  • Stainless hired Miriam Regalado in 2000.
  • Regalado filed a gender-based discrimination charge with the EEOC against her supervisors in 2002.
  • February 13, 2003, the EEOC notified Stainless of Regalado's charge.
  • March 7, 2003 (3 weeks after learning of the charge), Stainless fires Thompson... oh yeah, I should probably mention that he was engaged to Regalado at the time.
  • Thompson brings suit against Stainless under Title Vii, alleging retaliation.
Title VII Anti-Retaliation Text
"It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter."
Title VII of the Civil Rights Act of 1964, § 704(a), 42 U.S.C. § 2000e-3(a) (emphasis added by the court).

Court's Analysis
  • "In our view, the text of § 704(a) is plain in its protection of a limited class of persons who are afforded the right to sue for retaliation."
  • "Significantly, Thompson does not claim that he engaged in any statutorily protected activity, either on his own behalf or on behalf of Miriam Regalado."
  • "By application of the plain language of the statute, Thompson is not included in the class of persons for whom Congress created a retaliation cause of action because he personally did not oppose an unlawful employment practice, make a charge, testify, assist, or participate in an investigation."
  • "In essence, plaintiff and the EEOC request that we become the first circuit court to hold that Title VII creates a cause of action for third-party retaliation on behalf of friends and family members who have not engaged in protected activity. However, we decline the invitation to rewrite the law."
How about that last bullet? Zing! Take that EEOC.

Other Circuits
The Court was kind enough to summarize some other cases from other circuits that have addressed this issue.

Third Circuit: Fogleman v. Mercy Hosp., Inc., 283 F.3d 561 (3d Cir. 2002).

Fifth Circuit: Holt v. JTM Industries, 89 F.3d 1224 (5th Cir. 1996).

Eighth Circuit: Smith v. Riceland Foods, Inc., 151 F.3d 813 (8th Cir. 1998).

Plus Sixth Circuit makes four circuits that have addressed the issue and all of them have ruled the same way.

Reason #4,682,092 not to be in an interoffice relationship. Oh, and there's no cause of action for retaliation against a third party under Title VII.
UPDATE: The Sixth Circuit stated that it does not wish to be the "first circuit court to hold that Title VII creates a cause of action for third-party retaliation...." However, a National Law Journal article on Thompson v. North American Stainless reports that "The 7th and 11th circuits, meanwhile, have concluded that third parties are entitled to protection from retaliation." I'll see if I can dig up those cases and let you know the rationale behind those decisions.

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