Closing the Floodgates: Defining a Class of Third-Party Plaintiffs for Title VII Retaliation Claims

AuthorLaura Blair Naquin
Pages669-701
Closing the Floodgates: Defining a Class of Third-
Party Plaintiffs for Title VII Retaliation Claims
TABLE OF CONTENTS
I. Introduction ..........................................................................670
II. Title VII of the Civil Rights Act of 1964: Its ............................
Development and Application .............................................672
A. Evolution of Title VII ....................................................672
B. Overview of Title VII ....................................................675
C. The Supreme Court’s Expansion of Retaliation
Claims in Recent Years ..................................................676
1. Expansion of the Definition of Employee
Robinson v. Shell Oil ..................................................677
2. Expansion of the Definition of Discrimination
Burlington Northern & Santa Fe Railway v. White ...678
III. The Creation of Third-Party Standing for Title VII
Retaliation Claims ................................................................679
A. Third-Party Retaliation Claims—The Pre-
Thompson Circuit Split ..................................................680
1. Purposive Interpretation of Title VII .......................681
2. Literal Interpretation of Title VII .............................682
B. Thompson v. North American Stainless
The Recognition of Third-Party Standing in
Title VII Retaliation Claims ...........................................684
IV. Proposed Standard for Third-Party Standing in
Title VII Retaliation Claims .................................................686
A. The Need for a Standard Governing Third-
Party Standing in Title VII Retaliation Claims ..............687
B. Rationale for Applying Torts Standard ..........................688
C. Tort Standard for NIED Claims and Its Application
to Third-Party Title VII Retaliation Plaintiffs................691
1. Relational Requirement ...........................................692
2. Temporal Requirement ............................................696
3. Spatial Requirement .................................................697
4. Standing for Third-Party Title VII
Retaliation Plaintiffs ................................................698
IV. Conclusion ...........................................................................700
670 LOUISIANA LAW REVIEW [Vol. 73
I. INTRODUCTION
Being sued is bad enough when you expect it, but a surprise
lawsuit is even worse. Suppose that you are a senior manager of a
company that has just conducted its annual employee performance
appraisals. Jane and Jeff, two of the employees whose appraisals
you have just examined, are married to each other and work in the
same office. After reading unfavorable performance reviews about
each of them, you add their names to a potential termination list. A
few hours after you read the reviews, however, you learn that Jeff
has filed a Title VII lawsuit against your company alleging
religious discrimination.1 Having a basic grasp of Title VII from
your general counsel’s previous advice, you recognize that firing
Jeff so shortly after learning of his discrimination claim would
potentially expose you to additional liability.2 Despite your
legitimate basis for terminating him, doing so could result in his
suing your company on additional grounds, claiming that you
terminated him in retaliation for his initial complaint.
Perhaps you may even refrain from terminating Jane during
this period. While you probably would not assume that firing her
would expose your company to a retaliation claim, you may
nevertheless feel some concern over the appearance that her
termination would create. At the very least, you may worry that
terminating her would heighten any tension between your company
and Jeff resulting from his lawsuit. You may fear that as a
consequence of Jane’s termination, the already disgruntled Jeff
would become even more displeased with the company and
perhaps even more aggressive with his suit.
Now, suppose that a year later your company again completes
performance appraisals. Upon reading a poor review of your
employee Mark, you decide to fire him. Mark works in a different
office than Jeff and Jane, and, as far as you know, he has no
affiliation with either spouse. Soon after you fire Mark, though,
you receive notice that he has filed a Title VII retaliation suit
against your company. You are surprised to learn that he is a friend
of Jeff. You are also shocked by Mark’s allegation that he was
fired in retaliation for Jeff’s initial discrimination claim. Based on
everything that you know about Title VII, you never expected to
face a retaliation claim from a third party who engaged in no Title
VII-protected activity himself.
Copyright 2013, by LAURA BLAIR NAQUIN.
1. See 42 U.S.C. § 2000e-2(a) (2006).
2. See id. § 2000e-3(a).
2013] COMMENT 671
In 2011, the United States Supreme Court opened the floodgat es
for this type of unexpected claim when it allowed a third-party
plaintiff to recover for a Title VII retaliation claim in Thompson v.
North American Stainless, LP.3 In this case, the Court recognized a
retaliation claim brought by the fiancé of a woman who had filed a
prior Title VII discrimination claim.4 However, the Court refused to
designate classes of third-party plaintiffs who may recover under
Title VII’s antiretaliation provision, thereby exposing employers to
unprecedented liability from an unpredictable array of potential
plaintiffs.5 To limit its liability effectively, an employer must know
not only which behavior may form the basis of a claim but also who
can file it. The law after Thompson fails to provide employers with
this basic level of certainty, though, because any third party can
currently file a Title VII retaliation claim against his employer.
Accordingly, employers need a standard defining which third parties
can file these claims.
This Comment proposes a standard for determining which third-
party plaintiffs can bring Title VII retaliation claims against their
employers. The proposed standard is rooted in principles of tort law,
which are appropriate both because of Title VII’s evolution into a
statutory tort and because of the Supreme Court’s application of tort
law principles to other employment discrimination issues.6
Specifically, the requirements for the tort of negligent infliction of
emotional distress (NIED), or bystander damages, may be used as a
model for third-party retaliation claims. Claims for NIED must
satisfy the elements of familial relationship, temporal proximity, and
spatial proximity.7 These elements also address considerations
pertinent to third-party Title VII retaliation claims. This Comment
analyzes different states’ requirements for NIED claims and
ultimately proposes a standard for determining which third-party
plaintiffs may bring Title VII retaliation claims.
Part I of this Comment describes the origin, evolution, and
substance of Title VII’s antiretaliation provision. This Part also
discusses the United States Supreme Court’s recent expansion of
Title VII retaliation claims by broadening the definition of
retaliation, the categories of actions deemed retaliatory, and the
class of plaintiffs eligible to file retaliation claims. Part II discusses
the Supreme Court’s expansion of Title VII retaliation claims to
3. Thompson v. North American Stainless, LP, 131 S. Ct. 863 (2011).
4. Id. at 868.
5. Id.
6. See discussion infra Part I.A; Staub v. Proctor Hosp., 131 S. Ct. 1186
(2011); see also Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998).
7. RESTATEMENT (SECOND) OF TORTS § 436 (1977).

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