Last year, in Thompson v. North Am. Stainless, the 6th Circuit Court of Appeals recognized a claim under Title VII’s anti-retaliation provision for associational retaliation: “Title VII prohibit[s] employers from taking retaliatory action against employees not directly involved in protected activity, but who are so closely related to or associated with” employees who engage in protected activity. (Emphasis added.)
I remain critical of this standard because it leaves open the issue of how close is close enough.
Recently, in Barrett v. Whirlpool Corp., the same court was faced with another issue concerning the relationships between protected and unprotected employees.
In Barrett, the court decided that, in claims of associational discrimination—that is, where one employee claims discrimination because of a relationship with protected employees—the degree of “closeness” between the employees simply does not matter. The only relevant issue is whether the employee was discriminated against because of his or her race. The court wrote:
“If a plaintiff shows that (1) she was discriminated against at work (2) because she associated with members of a protected class, then the degree of the association is irrelevant. … The absence of a relationship outside of work should not immunize the conduct of harassers who target an employee because she associates with African-American co-workers. While one might expect the degree of an association to correlate with the likelihood of severe or pervasive discrimination on the basis of that association—for example, a nonprotected employee who is married to a protected individual may be more likely to experience associational harassment than one who is merely friends with a protected individual—that goes to the question of whether the plaintiff has established a hostile work environment, not whether he is eligible for the protections of Title VII in the first place.”
Applying the Barrett standard
The treatment of two different employees in the Barrett case illustrates how this standard works.
Lynette Barrett, who is white, was friends with black employees. Those black employees were targeted with what can only be described as offensive and inappropriate misconduct by other white employees. They used racial epithets, threats of violence, and racist jokes and graffiti.
Barrett claimed that other white employees shunned her at work because of her friendship with the black employees. She sued Whirlpool for harassment. Ultimately, Barrett lost on the merits of her claim. None of the offensive conduct was directed at her, and general snubbing does not support a harassment claim.
Treva Nickens, also white, was also friends with black employees at Whirlpool. She also witnessed offensive racial conduct at work. Unlike Barrett, however, co-workers directed harassing conduct directly at Nickens. After she complained to a supervisor, she was threatened with physical violence. She was also told on more than one occasion by different employees that she needed to stay with her own kind and was called a “n——r lover.”
Like Barrett, the court found that racist comments and jokes not directed at her did not support Nickens’ discrimination claim. However, more than Barrett, Nickens was the victim of direct harassment resulting from her association with black employees. She received a threat of physical violence for reporting racist language and was subjected to a regular stream of offensive comments about her relationship with black co-workers.
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