Thursday, April 3, 2008
Coming during the same short period of the association discrimination claim in the Iona case by the 2nd Circuit, the Sixth Circuit has now found, 2-1, for a plaintiff in an associational retaliation claim under Title VII in the case of Thompson v. North American Stainless, LP, 07-5040 (6th Cir. Mar. 31, 2008).
Here are some passages from the opinion:
Shortly after Appellant Eric Thompson’s fiancée filed a discrimination charge with the EEOC against their common employer, the Appellee, Thompson was terminated. The parties to this appeal ask whether the anti-retaliation provisions in Title VII of the Civil Rights Act protect a related or associated third party from retaliation under such circumstances. We hold that that they do, and REVERSE the district court’s grant of summary judgment to the employer . . . .
According to the complaint, Regalado filed a charge with the Equal Employment Opportunity Commission (EEOC) in September 2002, alleging that her supervisors discriminated against her based on her gender. On February 13, 2003, the EEOC notified North American Stainless of Regalado’s charge. Slightly more than three weeks later, on March 7, 2003, the defendant terminated Thompson’s employment. Thompson alleges that he was terminated in retaliation for his then-fiancée’s EEOC charge, while North American Stainless contends that performance-based reasons supported the plaintiff’s termination . . . .
Here, a literal reading of section 704(a) suggests a prohibition on employer retaliation only when it is directed to the individual who conducted the protected activity. Such a reading, however, “defeats the plain purpose” of Title VII. There is no doubt that an employer’s retaliation against a family member after an employee files an EEOC charge would, under Burlington, dissuade “reasonable workers” from such an action . . . .
The Compliance Manual expressly states that a person claiming retaliation need not be the one who conducted the protected activity. “Title VII . . . prohibit[s] retaliation against someone so closely related to or associated with the person exercising his or her statutory rights that it would discourage that person from pursuing those rights.” Johnson v. University of Cincinnati, 215 F.3d 561, 580 (6th Cir. 2000) (emphasis added) (quoting EEOC Compliance Manual (CCH) ¶ 8006).
The dissent, on the other hand writes:
From time to time, we should remind ourselves that we are judges, not legislators. This is such a time. Because the majority has rewritten the Civil Rights Act of 1964 to conform it to their notion of desirable public policy, I respectfully dissent.
Another example of a fight between remedialists and literalists in construing the statute. I think the remedialists have the better argument both because Title VII is a remedial statute par excellence, and because, as Noah Zatz commented to the Iona post:
It is a straightforward extension of a race-plus/stereotyping theory: employers cannot insist that white people have relationships (of any sort) only with other white people (or Democrats, or Minnesotans). For a general discussion of these cases, and their connections to other intergroup "association" claims, [shameless plug warning] see my "Beyond the Zero-Sum Game: Toward Title VII Protection for Intergroup Solidarity," 77 Indiana Law Journal 63 (2002), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=902656.
Also, I suspect Alex Long is feeling vindicated by this holding. Here is his recent article, The Troublemaker's Friend: Retaliation against Third Parties and the Right of Association in the Workplace, which is directly on point.
Hat Tip: Chris Timmermans