Earlier this year, the U. S. 6th Circuit Court of Appeals, whose decisions apply to Michigan employers, expanded the coverage of Title VII of the Civil Rights Act of 1964’s anti-retaliation provision when it held that the fiancé of an employee who made a complaint to the EEOC could bring a retaliation action when he was discharged by the employer.
The case was Thompson v. North American Stainless (No. 07-5040, 6th Cir., 2008). Eric Thompson worked as a metallurgical engineer for North American Stainless. He was engaged to Miriam Regalado, a co-worker. Their engagement was common knowledge at North American Stainless.
Retaliation against co-worker
In September 2002, Regalado filed a complaint with the EEOC alleging that her supervisor discriminated against her because of her gender. The EEOC notified the employer of the charge on Feb. 13, 2003. On March 7, 2003, North American Stainless fired Thompson, citing
Thompson sued, alleging he was terminated in retaliation for his fiancée’s EEOC complaint. The lower court dismissed his claim, finding that the anti-retaliation provision of Title VII did not apply.
On appeal, the 6th Circuit noted that the anti-retaliation provision of Title VII prevents retaliation by employers for two types of activities: (1) opposition to a practice prohibited by the act’s employment provision and (2) participation in making a charge, testifying, assisting or participating in any manner in an investigation, proceeding or hearing under the act’s employment discrimination provision.
The court recognized that the plain language of the anti-retaliation provision would not protect a person who was closely associated with an employee who engaged in opposition or participation activity. However, the court noted that, when read with other provisions of the act, the purpose of the anti-retaliation provision was to encourage the reporting of violations of the act’s employment anti-discrimination provision.
Burlington Northern standard
Relying on the U. S. Supreme Court’s landmark 2006 decision in Burlington Northern and Santa Fe Railway Co. v. White, the 6th Circuit noted that one of the primary purposes of the anti-retaliation provision was “[m]aintaining unfettered access to statutory remedial mechanisms.”
The Burlington court required that a plaintiff 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.”
The 6th Circuit held that, while a plain reading of the anti-retaliation provision would prohibit Thompson’s lawsuit, allowing an employer to retaliate against a family member of an employee who complained of discrimination would dissuade employees from such actions.
The court dismissed North American Stainless’ claim that the court’s decision would open the floodgates for litigation by employees closely related to the complaining employee.
The court noted that the plaintiffs still had to prove a prima facie case of retaliation. As part of the prima facie case, the plaintiff has to prove a causal link between the relative’s protected activity and the discharge. The court believed this requirement would protect employers from defending against meritless suits.
The 6th Circuit is the first federal appeals court to expand coverage of Title VII’s anti-retaliation provision to “friends and family.”
Other federal circuits have rejected those types of claims, which means the Supreme Court may ultimately decide whether the 6th Circuit view will prevail.
What employers can do now
The scope of the 6th Circuit decision in Thompson is unclear because the court used broad language—“family and friends”—when describing who would be covered under its rulings.
At the very least, the decision means:
- Employers should exercise care when disciplining, discharging or taking an action that could be considered adverse to an employed relative of an employee who may be covered by the anti-retaliation provisions of federal civil rights and whistle-blower statutes.
- Before taking any action, ensure that the reason for the action is well-documented and that it is a legitimate, nonretaliatory reason.
- If possible, ensure that the person who makes discipline decisions does not know about the relative’s protected activity.
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