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Sixth Circuit Provides New Cause Of Action Under Anti-Retaliation Provision of Title VII

Recently, the Sixth Circuit in Thompson v. North American Stainless, 2008 U.S. App. Lexis 6776 (6th Cir. Mar. 31, 2008) overturned a decision of a Kentucky District Court and held that the anti-retaliation provisions in Title VII of the Civil Rights Act protect a related or associated third party from retaliation in certain circumstances.


The Appellant, Eric Thompson, began working for the employer, North American Stainless, in 1997. In 2000, Miriam Regalado began working for the same employer. Thompson and Regalado thereafter began dating and were engaged by the time of Thompson's termination (they eventually married). Their relationship was common knowledge at North American Stainless.


In September 2002, Regalado filed a charge with the Equal Employment Opportunity Commission (EEOC), 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 employer terminated Thompson's employment. Thompson alleged in this case that he was terminated in retaliation for his then-fiancée's EEOC charge, while North American Stainless contends that performance-based reasons supported his termination. The issue was whether the anti-relation provisions of Title VII extend to persons not expressly described in the statute.


The literal language of the anti-retaliation provision, as set forth below, did not support Thompson's position:

It shall be an unlawful employment practice for an employer to discriminate against any of its employees . . . 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.


Here, however, the Sixth Circuit chose to ignore the literal language of the statute, as it contended that a court is entitled to go beyond the literal language of a statute if reliance on that literal language would defeat the plain purpose of the statute. It cited a recent Supreme Court case, Burlington Northern and Santa Fe Railway Co. v. White , 548 U.S. 53 (2006), which broadly interpreted the anti-retaliation provision. Moreover, other courts had previously recognized that it may be materially adverse to an employee, engaged in protected activity under the anti-retaliation section of Title VII and other acts, to exact punishment against a family member or friend in the same workplace. But this case went even further and conferred a direct cause of action on victims of such third-party retaliation, even when the victims did not oppose or participate in proceedings against discrimination.


Employers should be aware of this possibility for a new type of a cause of action. Although this case concerned an engaged couple, this holding could likely be expanded to cover other types of familial relations.


If you have any questions regarding this, or any other legal issue, please feel free to contact a member of Greenebaum's Labor and Employment Practice Group. Click here for a complete roster.


This communication is provided as general information rather than legal advice. Questions about individual situations should be addressed to the attorney of your choice. The regulations governing legal advertising in the states of Kentucky, Ohio and Tennessee require that communications of this kind contain the following statement: THIS IS AN ADVERTISEMENT. Kentucky law does not certify specialties of practice.

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