An Inevitable Progression in the Scope of Title VII's Anti-Retaliation Provision: Third-Party Retaliation Claims

• Author: John J. Feeney
• Position: Juris Doctor candidate, May 2010
• Pages: 643-671

AN INEVITABLE PROGRESSION IN THE SCOPE OF

TITLE VII’S ANTI-RETALIATION PROVISION: THIRD-

PARTY RETALIATION CLAIMS

JOHN J. FEENEY*

I. INTRODUCTION

In to day’s world, it is not uncommon for family members to wo rk for

the same e mployer. There are some obvi ous advant ages to working with a

family member. For instance , people worki ng with rel atives have someon e

they can fully tru st in the office and have so meone to carpool with .

However, there are also apparent disadvantages. Familial relationships

between co-work ers can neg atively affect the work envi ronment when

family disp utes spill over into working h ours, when other employees feel a

boss’s relative is gett ing sp ecial treat ment, or when cliques form.

However, there is on e di sadvantage that is not o bvious—one family

member may suffer an adverse employment action as a result of the

protected activi ty of the other.

To illustrate how t his disadvantage may arise, consider the fo llowing

hypothetical involving Jo hn an d Katie , a married cou ple emp loyed by the

same employer. Katie’s supervisor made sexual advances to her, and she

filed a sexual h arassment co mplaint. Shortly thereafter, John was

demoted, despite his excel lent employment evalu ations. The employer

claimed the de motion was a mere coincidence. John was convinced h e had

been the victim of retaliation for his wife’s complai nt. Should the court

recognize his claim ?

Title VII undoubtedly prohib its employers from firing or otherwise

adversely treating employees for engaging in a protected activity.1

Protected activity occurs when an employ ee opposes an unlawfu l

employment practice or files a discrimination charge against his or her

Copyright © 2010, John J. Feeney.

* Juris Doctor candida te, May 2 010. I would lik e to thank Mr. Lawren ce F. F eheley,

who served as a valuable resour ce for this article. His helpful comments and suggestions

played a vital role in shaping my argum ent. I wo uld also like to thank Kathryn Stokes for

her constant a ttention to all my q uestions and concerns, and for h er help in editing th is

article.

1 42 U.S.C. § 2000e–3(a) (20 06) (“It shall be made an unlawful employment practice

for an employer to discriminate against any of his employees . . . because he has opposed

any practice made an unlaw ful employment practice by this subchap ter.”).

644 CAPITAL UNIV ERSITY LAW REVIEW [38:643

employer.2 However, it is unclear wh ether Title VII protection extend s to

third-parties who do not person ally perform a protect ed activity, but are

treated adversely by their employers in retaliation fo r ano ther’s

engagement in a protected activ ity. This situation frequently ari ses when

two relatives work for th e same emplo yer and the employer fires one in

retaliation for the other filing a discriminat ion charg e or engaging in

another form of pro tected activi ty.3

There is currently a split among the circuit court s regarding third-party

retaliation clai ms. Som e circuits allow third-part y retaliati on claims on the

premise that they are consistent with the purpose of Title VII.4 Other

circuits prohi bit such clai ms, deeming them inco nsistent with the plain text

of Title VII.5

This comment ad dresses the ci rcuit split on this issue and proposes that

all juris dictions should permit such third-party claims. Part I I of this

comment provides a brief background on Title VII. It also reviews the

elements of a prima facie retaliation claim. Part III presents an overview

of different thi rd-party retaliation cases, focusing on the rationale behind

the holding in each case. Part IV examines recent Supreme Court

2 Id. (referring to protected activity as “any practice made an unlawful employment

practice by this subchapter, or be cause he [the employee] has made a charge, testified,

assisted, or participated in any manner in an investig ation, proceeding, or hearing u nder this

subchapter”).

3 See discussion infra Part II.C.2 .

4 See Thomp son v. N. Am. S tainless, LP, 520 F.3d 644, 646 (6th Cir. 2008) (holding

Title VII prohibi ts “employers from taking retaliatory action against employees not directly

involved in protected activity, but w ho are so clos ely related to or associated with those

who are directly involved , that it is clear that the protected activity motivated the employer's

action[]”); EEOC v. V & J Foods, Inc., 507 F.3d 575, 580 (7th Cir. 2007) (holding any

retaliation by an employer against a sixteen year-old employee for intervention b y th e

employee’s m other constituted retaliation against the employee for purposes of Title VII);

Wu v. Thomas, 863 F.2 d 1543, 1549 (11th Cir. 1989) (holding a claim of retaliation for

opposition to discrimina tory practice “does not require th at the employer actually have been

engaged in an unlawful emp loyment practice”).

5 See Fogleman v. Mercy Hosp ., Inc., 283 F.3d 561, 569 (3d Cir. 2002) (“The

preference for plain meaning is based on the constitutional separation of po wers—Congress

makes the law and the judiciary interpr ets it. In doing so we generally assume that the best

evidence of Congress’s int ent is what it says in the texts of the statu tes.”); Smith v. Riceland

Foods, In c., 151 F.3d 813, 819 (8th Cir. 1998) (“[A] plaintiff bringing a retaliation claim

under Title VII must establish that she personally engaged in the protected conduct.”); Hol t

v. JTM Indus., Inc., 89 F.3d 1224, 1226–27 (5th Cir. 1996) (ho lding that individuals do n ot

have standing to sue for r etaliation if they have not participated in protected condu ct).