Thursday, April 3, 2008

6th Cir. Takes on Title VII Association Retaliation Claim

Scalesred 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

PS

https://lawprofessors.typepad.com/laborprof_blog/2008/04/6th-cir-takes-o.html

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Holcomb v. Iona College, __F.3d__(2d Cir. April 1, 2008), is an important decision.Download 063815cv_opn1.pdf In a case of first impression, the court recognized a cause of action for discrimination on the basis of association. A white plaintiff assert... [Read More]

Tracked on Apr 3, 2008 9:56:40 PM

Comments

When I posted this case on 3/31 (http://www.mmmglawblog.com/tp-080318191354/post-080401071906.shtml), I noted that the dissent’s position ran aground because the employee who was personally engaged in the protected activity would, indisputably, have an individual claim for retaliation against a third party who was a friend or family member (because it would reasonably dissuade an employee form taking protected activity). Hence, other than conferring the cause of action on the third-party (as the majority did here), it didn’t really change the law in the area much at all.

It does, however, expand the potential liability for the employer, because instead of just compensatories for mental distress to the employee engaged in protected activity, it may also have to fork over back and front pay, etc., to the third-party as well.

Posted by: Paul Mollica | Apr 3, 2008 6:56:39 AM

As Paul M. suggests, the policy vs. text framing of this issue can be avoided by separating the question of whether the employer's conduct violated the statute from the question of whether the plaintiff had standing to sue. The analysis goes like this:
1) As Alex argues in his article, under Burlington Northern, there's a strong argument that retaliating against A by firing B (A's friend, family member, etc.) is an adverse action b/c it tends to dissuade A.
2) Therefore, the ER violated TVII by retaliating against A (using B as the tool).
3) But B sued, not A. That's a question of third-party standing. And Title VII's text allows suits by any "person aggrieved", not jus the "employee" in question, as most courts have held when considering the question.
4) B is clearly a "person aggrieved," who suffered a direct injury as a result of the violation. Here, the text aligns with the variety of policy reasons for granting a remedy to B (again, articulated well by Alex, though toward a different doctrinal hook). Whatever prudential limits there might be on the breadth of third-party standing, B clearly will fall within them.
5) Therefore B can sue, even if only A's Title VII rights were violated.
On the facts, it's probably also a better argument than the stereotyping theory that I think works well for Iona College.
For a discussion of the caselaw on third-party standing under Title VII, see my Zero-Sum Game article referenced in the original post.

Posted by: Noah Zatz | Apr 3, 2008 7:36:55 AM

My experience with retaliation is as a plaintiff in two federal complaints/lawsuits on discrimination and retaliation. When I applied for a high school principal position in 1986, I was told, "Hell will freeze over before we'll hire a woman to be high school principal." So I sued and won. I got a comparable principal's job in the school district as a result. In 1997, I applied for the district superintendent position and was closed out of any promotions in retaliation for my lawsuit. So I filed a complaint. In 1999, the EEOC found probable cause that discrimination and retaliation had occurred and proposed a significant conciliation agreement. However, even after the EEOC finding, the active retaliation continued. What amazed and discouraged me was the effectiveness of retaliation. It has a powerful and chilling effect on co-workers. I wrote Plaintiff Blues to describe these experiences. I applaud anyone who stands up for their rights and special kudos to those who fight the all too prevalent retaliation.

Posted by: Judith Pearson | Apr 6, 2008 11:35:16 AM

Thompson and Iona are fundamentally different causes of action. One is "third-party retaliation" while the other is "association" discrimination. In Thompson, the plaintiff did not assert that his association with a female was the reason for his termination - it was the association with someone that had filed a charge, thus retaliaion; in Iona, there was no "retaliation" for anything - plaintiff asserted that his association with a minority was the reason he was fired - which the courts turn into a race discrimination claim, not a retaliation claim. To mix the two is a bit dangerous.

Mr. Mollica - have there been successful cases where an employee claimed retaliation because of a friend or family member being terminated or experiencing an adverse employment action? While it might meet the BNSF standard in theory, it's not really an adverse "employment" action to fire a friend or family member, is it? (Not commenting on the "right or wrong" aspect of it, of course)

Posted by: Alex | Apr 8, 2008 7:54:17 AM

I realize my mistake in that comment about "employment" - but still, if someone else suffers the action - would the facts and context of the adverse action matter?

Posted by: Alex | Apr 8, 2008 8:49:29 AM

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