Hot Topics from the Sixth Circuit

In the last Sixth Circuit Update, we wrote about the controversial topic of “associational” or “third-party” retaliation claims. To recap, in Thompson v. North American Stainless, a three judge Sixth Circuit panel found that an employee terminated shortly after his fiancé filed a gender discrimination charge with the EEOC could maintain what is now being referred to as an associational or third party retaliation claim. The case was reheard by all of the Sixth Circuit judges and, on June 5, 2009, the three judge panel was reversed. That ruling is consistent with prior rulings in the Third, Fifth and Eighth Circuit Courts of Appeal which have held that retaliation claims are limited to only those persons who have personally engaged in protected activity by opposing an unlawful practice, have made a charge, or have assisted or engaged in protected activity. In other words, protection is not extended to persons subjected to an adverse employment action merely because of their association with a person who engaged in protected activity.

The ruling in Thompson was based on the plain language of the retaliation provisions of Title VII of the Civil Rights Act of 1964. The Court analyzed the plaintiff’s allegations and found he did not allege that he was subjected to retaliation by his employer because he engaged in protected activity or opposed unlawful practices. Instead, the plaintiff merely alleged he was retaliated against due to his relationship with a person who engaged in protected activity. The Court found that its interpretation does not undermine the provision’s purpose because retaliation is still actionable. It is actionable, however, only in a suit by a primary actor—not a passive bystander. The Court also noted that “no circuit court of appeals has held that Title VII creates a claim for third-party retaliation in circumstances where the plaintiff has not engaged personally in any protected activity.”

The Sixth Circuit’s decision was not unanimous. While the majority went to great lengths to distinguish Thompson from the United States Supreme Court’s decision in Crawford v. Metropolitan Gov’t of Nashville (decided January 26, 2009), the dissenters argued that Crawford directed appellate courts to interpret the term “oppose” in the statutes broadly. In Crawford, the Supreme Court found that Title VII’s anti-retaliation provision protects an employee who speaks out about discrimination, not in active opposition to the discrimination, but in answering questions during an employer’s internal investigation. In that case, during an internal investigation about rumored sexual harassment by a school district employee, the plaintiff confirmed that she had previously been sexually harassed by the target of the investigation. The plaintiff was later fired for alleged embezzlement, but the alleged harasser maintained his job. The Supreme Court found the plaintiff was not required to report the discrimination on her own initiative in order for the anti-retaliation provision to become applicable. The Supreme Court, instead, loosely interpreted the opposition clause to apply to those who cooperate in an internal investigation by reporting instances of discrimination. In the end, however, the Sixth Circuit in Thompson was not ready to extend the opposition clause to cover those subjected to retaliation because of someone else’s participation in protected activity or opposition to unlawful practices.

Associational and third-party retaliation claims are not yet dead in the water. We expect a circuit split could arise and the United States Supreme Court could take one of these cases to clear up this area of the law. Until this country’s high court directly addresses the issue, employers should be mindful of the risk associated with taking an adverse employment action against someone who is related to or associated with someone else who has engaged in protected activity, such as making a discrimination or harassment charge.