Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Monday, June 8, 2009

Breaking News! En Banc 6th Cir Reverses Itself And Rejects Associational Discrimination Theory


Thompson v North Am Stainless, LP, ___F.3d___(6th Cir. June 5, 2009) (en banc), is a critically important case. The en banc panel overturned its prior 2-1 ruling which had broadened the scope of Title VII’s anti-retaliation provision. A divided en banc Sixth Circuit held  that Sec. 704(a) of the Act does not provide a cause of action for third-party retaliation for individuals who did not personally engage in protected activity. “Our interpretation does not undermine the anti-retaliation provision’s purpose because retaliation is still actionable, but only in a suit by a primary actor who engaged in protected activity and not by a passive bystander.”  In its previous ruling, the Sixth Circuit became the first court of appeals to recognize a claim for associational retaliation under Title VII’s anti-retaliation provision, noting its decision comported with precedent from the Seventh and Eleventh Circuits, the EEOC's Compliance Manual, and the Supreme Court’s reasoning in Burlington N & Santa Fe Railway Co v White.
However, this time, the court joined the Third, Fifth and Eighth Circuits, which have “soundly rejected” such claims, in concluding the plain language of the statute covers only individuals’ own opposition or participation activity and does not protect related or associated third parties. “We decline the invitation to rewrite the law,” the majority noted. Thus, the court affirmed summary judgment to the employer on a suit brought by a male employee who alleged he was fired in retaliation for an EEOC sex bias charge filed by his then-fiancée, who also worked for the company. In what probably will become an important quote, the court explained:

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.

This is a very interesting issue in dire need of good law review commentary. If any of my students are still looking for a paper topic, this is a great one. Richard, I scooped you on this one! Finally!!

Mitchell H. Rubinstein

Current Events, Discrimination Law, Law Review Ideas | Permalink

TrackBack URL for this entry:

Listed below are links to weblogs that reference Breaking News! En Banc 6th Cir Reverses Itself And Rejects Associational Discrimination Theory:


I will have further observations and empirical information about the ideological voting patterns of the Sixth Circuit, particularly but not exclusively regarding the judges' bitter divisions in death penalty cases, in Mitchell's future post.

Posted by: Toronto Personal Injury | Jun 9, 2009 4:42:30 AM

Post a comment