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‘Association discrimination’: A new frontier for HR?

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in Discrimination and Harassment,Employment Law,Human Resources

You know it’s illegal under Title VII to discriminate against employees based on their race, sex, age and other protected characteristics. But a smattering of new court cases seem to expand that protection further—and create a new employment-law risk.

Those cases demonstrate that employees may have the right to claim discrimination or retaliation not just for their own protected characteristics or activity, but also for the employees’ association with others within that protected group. Two recent cases highlight the trend:

Case 1: Fired over interracial marriage? A white basketball coach at Iona College in New York filed a race discrimination lawsuit, claiming his bosses made racially insensitive remarks about his black wife. The 2nd Circuit Court sent the Title VII case to trial, saying there was enough evidence that a racial motive was part of the termination decision. (Holcomb v. Iona College)

The problem: Title VII prohibits job discrimination against individuals “because of the individual’s race.” This language doesn’t include in the list of those protected the race of the person with whom an employee associates.

“This form of judicial activism creates a slippery slope,” says Lou DiLorenzo, chair of the Labor and Employment Law Department at Bond, Schoeneck & King in New York. “There is virtually no one who does not associate with persons of another race, sex, religion or national origin. This decision leaves the ‘degree of association’ an undefined abyss.”

Case 2: Fired over fiancée’s complaints? Eric Thompson worked with his fiancée at an Ohio manufacturer. But he was fired soon after his fiancée filed a discrimination lawsuit. Thompson saw a connection and filed a retaliation lawsuit.

A lower court tossed out his case, reasoning that Title VII didn’t protect third parties from retaliation. But the 6th Circuit Court of Appeals reversed and sent the case to trial.

The court noted that the EEOC has said it thinks retaliation against anyone associated with the person who complains about discrimination is illegal. However, this marks the first time a federal appeals court has agreed. In fact, three other circuits (the 3rd, 5th and 8th) have rejected third-party retaliation Title VII claims. (Thompson v. North American Stainless, 6th Cir.)

Bottom line: The U.S. Supreme Court may eventually have to sort out whether such “association discrimination” claims are legit. In the meantime, this trend provides more incentive to eliminate discrimination in the workplace. This concern is particularly important when spouses or other relatives are employed by the same employer.

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