567 F.3d 804 (6th Cir. 2009) (en banc), cert. granted, 79 U.S.L.W. 3007 (June 29, 2010) (No. 09-291)
Does Section 704(a) of Title VII, which forbids an employer from retaliating against an employee because he or she engaged in certain protected activity, also forbid an employer from retaliating for such activity by inflicting reprisals on a third party, such as a spouse, family member or fiancé, closely associated with the employee who engaged in such protected activity, and, if so, may that prohibition be enforced in a civil action brought by the third-party victim?
The question presented is whether Title VII of the Civil Rights Act of 1964 creates a cause of action for third-party retaliation for persons who have not personally engaged in activity protected by the statute.
Both Eric Thompson and his wife, Miriam Regalado (who was his fiancée at the time the facts giving rise to this case occurred), are former employees of North American Stainless, the owner and operator of a stainless steel manufacturing facility in Carroll County, Ky. In 2002, Regalado filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging that her supervisors discriminated against her based on her gender. It was widely known throughout the facility that Thompson and Regalado were engaged to be married. On Feb. 13, 2003, the EEOC notified North American Stainless of Regalado's charge. On March 7, 2003, North American Stainless terminated Thompson's employment.
Thompson sued North American Stainless under Title VII, alleging that he was terminated in retaliation for his then-fiancee's EEOC charge. North American Stainless contends that performance-based reasons supported Thompson's termination.
The District Court granted North American Stainless' motion for summary judgment, holding that Thompson failed to state a claim under either the anti-discrimination provision of Title VII set forth in 42 U.S.C. § 2000e-2(a) or the anti-retaliation provision in 42 U.S.C. § 2000e-3(a). Thompson appealed, and in a 2-1 decision the Sixth Circuit Court of Appeals reversed the District Court. The panel majority held that the anti-retaliation provision of Title VII applies to a third party related to or closely associated with the employee who engaged in protected activity, since permitting such retaliation would undermine the purposes of Title VII. The full Sixth Circuit granted North American Stainless' petition for rehearing en banc and reversed the panel decision.
The outcome of the case depends on the court's interpretation of 42 U.S.C. § 2000e-3(a), the anti-retaliation provision of Title VII, which provides:
It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment … because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.
The Sixth Circuit en banc majority, citing Supreme Court cases establishing rules for statutory construction, concluded that the statutory language is unambiguous and held that under the "plain meaning rule" the anti-retaliation provision protects:
[A] limited class of persons who are afforded the right to sue for retaliation. To be included in this class, plaintiff must show that his employer discriminated against him "because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter."
— 42 U.S.C. § 2000e-3(a) (emphasis added).
In Thompson v. North American Stainless, LP, 567 F.3d 804, 807 (6th Cir. 2009), the court found that since Thompson did not personally engage in any of the listed activities "he is not included in the class of persons for whom Congress created a retaliation cause of action …." Id. at 808.
Three judges dissented. Judge Martin, citing Crawford v. Metropolitan Government of Nashville, 129 S. Ct. 846 (2009), rejected the majority's conclusion that the meaning of the anti-retaliation provision is plain and unambiguous. He argued that the meaning of "oppose," an undefined term, is ambiguous and, therefore, based "on the text, structure, history, and Congressional purpose" of the statute, would find Thompson's claims cognizable. Id. at 819. Judge Moore would also find Thompson's claims cognizable under the retaliation provision because of the statutory purpose and recent Supreme Court cases emphasizing that "a broad approach should apply in interpreting statutes meant to protect employees against employer retaliation for protected activity." Id. at 820. Like Judge Martin, Judge White rejects "the majority's conclusion that the anti-retaliation provision unambiguously provides that only the person who opposed the violation can maintain the action." Id. at 826.
Since the anti-retaliation provision of the Age Discrimination in Employment Act (ADEA) is almost identical to the anti-retaliation provision of Title VII, AARP will file a brief amicus curiae that, like the three dissenting Sixth Circuit judges, argues that the majority view contravenes the statutory purpose and Supreme Court's generally broad interpretation of statutes protecting employees. Unfortunately, it appears that this will be an uphill fight because the other three circuits that have addressed the issue have all rejected third-party retaliation claims.
Resolution of the issue will affect older workers directly because the court's decision will be applied to the ADEA, ADA and other employment statutes. If the court narrowly construes the anti-retaliation provision to exclude third-party claims, the decision will maintain the opening provided by the Sixth Circuit and other circuits for unscrupulous employers to retaliate indirectly against older workers. On the other hand, a decision holding that the anti-retaliation provision protects third parties would further the congressional purpose that Title VII, the ADEA, the ADA and other federal laws guarantee the workplace civil rights of employees.