Protected Activity: Sixth Circuit Rejects Third-Party Retaliation Claims Under Title VII
The Sixth U.S. Circuit Court of Appeals (which covers Kentucky) recently addressed the controversial issue of whether third-party retaliation claims are valid under Title VII of the Civil Rights Act of 1964. In a case involving a Kentucky employer, the Sixth Circuit joined several other circuits in holding that employees who don’t personally oppose discrimination in some way or participate in an investigation or proceeding under Title VII cannot pursue retaliation claims.
Eric L. Thompson worked from 1997 until 2003 as a metallurgical engineer for North American Stainless, L.P., in Carroll County. After Miriam Regalado was hired in 2000, Thompson began dating her. They eventually became engaged to be married.
In September 2002, Regalado filed a charge of sex discrimination with the Equal Employment Opportunity Commission (EEOC). Five months later, the EEOC notified North American that she had filed a charge. About three weeks later, Thompson was terminated for poor performance. He thought the real reason for his discharge was to punish his fiancée.
Thompson filed a charge with the EEOC, which investigated and concluded there was “reasonable cause” to believe North American had violated Title VII. After conciliation efforts were unsuccessful, the agency issued a right-to-sue letter, and Thompson sued North American in federal court.
The company asked the trial court to dismiss the case, and the court complied. Thompson then appealed to the Sixth Circuit, which hadn’t previously ruled on a case with these facts.
Sixth Circuit’s analysis
The issue of whether third-party retaliation claims are valid under Title VII has been hotly debated in a number of circuits. In general, a person who asserts a retaliation claim must first show that he engaged in activity that’s protected under the law. To be covered by Title VII, an employee must have “opposed” an unlawful practice or “made a charge, testified, assisted, or participated” in a Title VII investigation or proceeding.
Thompson didn’t claim that he had participated in any protected activity, either on his own behalf or on behalf of his fiancée. Rather, he argued that Title VII prohibited North American from firing him in retaliation for his fiancée’s protected activity.
The court noted that Thompson conceded that he didn’t personally oppose any unlawful activity or participate in any of the activities protected under Title VII. According to the court, the plain language of the statute requires that an employee personally engage in a protected activity to have a valid retaliation claim.
The Sixth Circuit distinguished this case from a recent U.S. Supreme Court decision that expanded the scope of retaliation claims. As we reported in our March issue, the Supreme Court reversed the Sixth Circuit in Crawford v. Metro Gov’t of Nashville and David- son County, Tenn., and held that an employee who was discharged after being interviewed during an internal investigation of a coworker’s harassment complaint “opposed” unlawful conduct when she provided unfavorable information about the accused supervisor (see “Supreme Court says Title VII covers employee responses to investigations,” pg. 6). In this case, however, Thompson never personally communicated to his employer his views about his fiancée’s claims or assisted her in filing her charge. Thompson v. North American Stainless, LP, No. 07-5040, 2009 WL 1563443 (6th Cir., June 5, 2009).
Although the employer “won” it in the end, this case reflects how you can be exposed to litigation from disgruntled employees willing to challenge the limits of the law. Unfortunately, the potential for a lawsuit arises each time you terminate an employee, even when you have ample reason for it. The best defense is to thoroughly document your legitimate business reasons before taking any adverse action.
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Copyright 2009 M. Lee Smith Publishers LLC
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