Wednesday, July 30, 2008
Via Paul and the BNA comes a report on this
United States District Court decision EEOC
v. Wal-Mart Stores, Inc., in which Wal-Mart allegedly refused to hire two
children of a woman who had filed a charge of discrimination with the EEOC
because she had filed that charge.
The District Court for the District of New Mexico dismissed the claims of the two children who had not personally participated in the filing of their mother's charge and who had not engaged in protected opposition to discrimination in connection with their mother's claim. There may be a split in the circuits on the issue, revolving around competing methods of statutory interpretation. The issue comes down to whether the language of Title VII should be strictly construed or whether the meaning of the language should be tempered by the clear purpose of the retaliation provision.
Title VII § 2000e-3(a) provides:
It shall be an unlawful employment practice for an employer to discriminate against any . . . employees or applicants for employment . . . because [they have] opposed any practice made an unlawful employment practice by this title, or because [they have] made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this title.
And the Supreme Court in Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53, 68 (2006) held that the type of conduct that would be considered retaliation included any actions that “. . . might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”
Several circuits (the 8th, 3d (ADA and ADEA), and 5th (ADEA)) have held that third parties who had not participated directly or opposed discrimination directly are not themselves protected by this provision because of the plain language of the statute which talks only about the persons who engage in these actions.
The 6th Circuit, on the other hand, very recently held that third parties closely associated with the person who did directly participate in proceedings or oppose discrimination are protected:
“[i]t is a well-established canon of statutory construction that a court should go beyond the literal language of a statute if reliance on that language would defeat the plain purpose of the statute[.]” . . . . Further, “it is well settled that, in interpreting a statute, the court will not look merely to a particular clause in which general words may be used, but will take in connection with it the whole statute . . . and the objects and policy of the law. . . .”
The EEOC's Compliance Manual (Vol. 2, §§ 8(B), (C)) supports this interpretation, as well, providing that Title VII prohibits retaliation not only against the person who engaged in the protected activity, but also 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.” And in this case (Wal-Mart), the EEOC argued that "barring such claims would undermine the overall purpose of Title VII to eradicate employment discrimination and to encourage protected activity."
The district court rejected the 6th Circuit and EEOC interpretations, agreeing with the 3d, 5th, and 8th Circuits that the plain language did not support those interpretations. Thus, the court dismissed the claims of the children. At the same time, recognizing the broad definition of retaliation, the court refused to dismiss the claim of the mother, the one who had filed the charge, that refusing to hire her children was retaliation against her.
Associational rights cases are very difficult, and we've blogged about them in lots of places (here, here, here, and here, for example). They also come in very different types, which may account for some of the different treatment of them by the circuits. The line drawn by the circuits that rely on a narrow reading of the language of Title VII, the ADA, and the ADEA is certainly a bright one for these kinds of cases. I agree with the 6th Circuit, though, that this leaves a lot of room for employers to discourage protected employee activity. Perhaps retaining the mother's claim is enough to deter this kind of conduct, though.