March 2010
A recent Sixth Circuit Court of Appeals decision could significantly impact how employers deal with employees who associate with an employee who files a discrimination charge or engages in some form of protected activity. The Sixth Circuit's decision in Thompson v. North American Stainless, No. 07-5040 (6th Cir. June 5, 2009) held that the opposition clause of Title VII does not create third-party retaliation cause of action for persons who did not engage in protected activity. After the Supreme Court's expansion of the opposition clause in Crawford v. Metro Government of Nashville and Davidson County, 129 S.Ct. 846 (2009), many employers and management-side attorneys have wanted to know if the Supreme Court will grant certiorari and expand the opposition clause even further.
In Thompson, the Plaintiff ("Thompson") was terminated by the Defendant ("North American Stainless") slightly more than three weeks after North American Stainless learned that Thompson's fiancée, who was also employed by North American Stainless, filed a discrimination charge with the Equal Employment Opportunity Commission. Apparently Thompson had no role in his fiancée's charge, so he never engaged in any obvious protected activity. Nevertheless, the company fired Thompson after his fiancée filed her charge with the EEOC. Thompson then sued and the federal court ruled in the company's favor, finding that Thompson failed to state a claim under the anti-retaliation provision of Title VII.
In his appeal, Thompson argued that the retaliation provision should be construed to include claimants who are closely related to or associated with a person who has engaged in protected activity. The Sixth Circuit disagreed. Citing similar stances in the Third, Fifth, and Eighth Circuits (the Eighth Circuit notably includes Iowa and Minnesota), the court likewise found that the plain meaning of Title VII's anti-retaliation provision states that only employees who have personally opposed a discriminatory practice, i.e. by making a charge or participating in an investigation, may sue their employer for retaliation. The court ruled that since Thompson had neither "opposed" a discriminatory practice nor participated in an investigation, he was not within the class of claimants Title VII's retaliation provision was meant to protect.
Thompson has now appealed the decision to the U.S. Supreme Court. If the Supreme Court decides to review Thompson's appeal, one might wonder what effect the Supreme Court's recent decision in Crawford will have on its consideration of Thompson. In Crawford, the Supreme Court expanded the class of claimants who "oppose" discriminatory practices to include those persons who testify in internal investigations. The Sixth Circuit majority in Thompson was quick to distinguish the facts of the two cases. The majority pointed out that unlike the plaintiff in Crawford, Thompson did not personally engage in any protected activity or opposition to discrimination. The dissent, however, feels that the definition of "oppose" in the retaliation provision is broader than the majority thinks. Further, the dissent feels that the Supreme Court's decision in Crawford has paved the way for the Supreme Court to expand the application of the opposition clause even further to include a claimant who, by nature of his close relationship to another employee, is being used as a sword to keep the employee from invoking their statutory rights.
The issue of whether a third-party cause of action exists for persons who did not actually engage in a protected activity, but are protected from retaliation because of their association or relationship to someone who did, could have a definite impact on employers. An expansive decision by the Supreme Court would require employers to be more cognizant of the relationships that exist in their workforce. More significant, however, would be the effect of creating a new cause of action for employees who have not personally opposed a discriminatory practice. Similar to warfare in the dark, employers might not be able to see where the attack is coming from.
Questions? Please contact any of our experienced attorneys in Illinois, Wisconsin, Minnesota or Iowa through http://www.wesselssherman.com/.
