Rethinking Retaliation: Sixth Circuit Expands the Availability of Retaliation Claims

In a recent case, a federal appellate court expanded the availability of retaliation claims under Title VII of the Civil Rights Act of 1964 (Title VII). The plaintiff in Thompson v. North American Stainless, LP, No. 07-5040 (6^th Cir. March 31, 2008) was fired soon after his fiancée, who also worked for the same employer, filed a charge of discrimination with the EEOC. Despite the fact that the plaintiff had not personally complained about discrimination or harassment and had not himself opposed any unlawful practices, the U.S. Court of Appeals for the Sixth Circuit (which covers Michigan, Ohio, Kentucky and Tennessee) held that he could maintain a cause of action for retaliation against his employer under Title VII.

Eric Thompson was employed by North American Stainless, LP. He met Miriam Regalado, who is now his wife, while working for North American Stainless and began dating her soon thereafter. In September 2002, Regalado filed a charge of discrimination with the EEOC, alleging that her supervisors discriminated against her because of her gender. Slightly more than three weeks after North American Stainless learned of Regalado’s charge, it terminated Thompson, who was engaged to Regalado at the time. Thompson then filed a charge with the EEOC, alleging that he was terminated in retaliation for Regalado’s EEOC charge.

North American Stainless argued that Thompson’s claim could not succeed because the anti-retaliation provisions of Title VII do not extend to cover relatives or other close associates of employees who have complained about discrimination. Thompson contended that the anti-retaliation provisions of Title VII do prohibit an employer from terminating an employee based on the protected activity of his fiancée who works for the same employer, and the EEOC filed an amicue curiae brief in support of Thompson’s position.

The Sixth Circuit accepted Thompson’s argument. It held that the anti-retaliation provisions of Title VII prohibit employers from taking retaliatory action against employees who are not directly involved in protected activity but are closely related to or associated with those directly involved. The Sixth Circuit reached this conclusion despite the fact that the text of Title VII only expressly prohibits discrimination against an employee because he or she personally has opposed a unlawful practice or otherwise complained of discrimination. The Sixth Circuit reasoned that a literal reading of the statute would “defeat the plain purpose of Title VII.” It also looked to the U.S. Supreme Court’s decision in Burlington Northern and Santa Fe Railway Co. v. White, in which the Court held that, to succeed on a claim of retaliation, an employee must demonstrate a “materially adverse” retaliatory action, which it defined as one that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” According to the Sixth Circuit, retaliation against a family member after filing an EEOC charge would, under Burlington, dissuade “reasonable workers” from filing a charge. Thus, it concluded, Title VII prohibits such action.

So far, the Sixth Circuit stands alone in explicitly holding that the anti-retaliation provisions of Title VII extend to the family members or close associates of an employee who has complained about discrimination. However, this case serves as a reminder of the thorny legal issues that arise after an employee complains of discrimination or harassment.

Ice Miller LLP’s labor and employment attorneys can help guide you through such situations and help you to comply with your obligations under the law.

Susannah Pieper is an associate in Ice Miller's Labor and Employment Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice.  The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.