Issue: Sixth Circuit says Title VII’s anti-retaliation provision protects third parties

For the week of April 21, 2008

Most employers understand that Title VII of the Civil Rights Act prohibits retaliation against an employee who has initiated or participated in a proceeding under that Act. But they also should be aware that at least one federal appellate court has extended that precept to apply to third parties who are related to or associated with a party who has engaged in protected activity under Title VII. Thompson v. North American Stainless, LP, 6th Cir., No. 07-5040, March 31, 2008.

Eric Thompson was engaged to a fellow employee, Miriam Regalado, when Regalado filed a charge of gender discrimination with the EEOC in September 2002 Their relationship was common knowledge at their place of employment, North American Stainless (NAS), in Carroll County, Kentucky. On February 3, the EEOC notified NAS of Regalado’s charge. On March 7, 2003, Thompson’s employment was terminated.

Thompson then filed a charge with the EEOC, claiming retaliation. After the EEOC found "reasonable cause" to believe that NAS had violated Title VII, Thompson filed a lawsuit in federal court. NAS moved for summary judgment, arguing that Thompson’s claim - that the sole motivation for his termination was his relationship with Regalado – was insufficient to support a cause of action for retaliation under Title VII. The lower court agreed, and dismissed the claim. On appeal, the Sixth Circuit reversed, holding that reprisals against a related third party could deter an employee from exercising protected rights under Title VII and, therefore, that Thompson’s claim could go forward.

The Court’s holding is noteworthy in one important respect: there is no allegation that Thompson himself took any specific action protected by Title VII, either to oppose any unlawful employment practice, or to participate in any manner in the proceeding related to Regalado’s charge, both of which is protected under the plain language of Title VII. In this case, the Court clearly went beyond the literal language of the statute, and explained its position by stating that the decision supported the "broader context of the statute as a whole." The Court found that a narrow reading of the statute would defeat the "plain purpose" of Title VII, because an employer’s retaliation against a family member after an employee files an EEOC charge would dissuade other reasonable employees from taking such action in the future. The Court also cited the EEOC’s Compliance Manual, which states that a person claiming retaliation does not have to be the same person who conducted the protected activity, but need only be "closely related to or associated with" the person exercising statutory rights under the Act.

Other courts to have gone beyond a literal reading of Title VII have held that the Act’s anti-retaliation language protects former employees, and also have held that it prohibits indirect discrimination (in one case, against a white employee with a bi-racial child). However, the Sixth Circuit’s decision to create a specific claim for third-party retaliation is a first, and forms a split with other Circuit Courts of Appeal to have directly addressed the issue. The Third, Fifth, and Eighth Circuits all have rejected third-party claims, expressing concern that extending such protection could "open the floodgates" from relatives and associated filing retaliation claims.

While this holding currently is limited in geographic scope (the Sixth Circuit includes federal courts in MI, OH, KY, and TN), it may create an impetus for other courts to fall in line with the rationale. Regardless of its effect, the case is a reminder that employers should document work-related issues upon which terminations are based, in order to support those terminations in the event of future litigation.