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 today’s world, it is not uncommon for family members to work for

the same e mployer. There are some obvious advantages to working with a

family member. For instance, people working with relatives have someone

they can fully trust in the office and have someone to carpool with.

However, there are also apparent disadvantages. Familial relationships

between co-workers can negatively affect the work environment when

family disputes spill over into working hours, when other employees feel a

boss’s relative is getting special treatment, or when cliques form.

However, there is one disadvantage that is not obvious—one family

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

protected activity of the other.

To illustrate how this disadvantage may arise, consider the following

hypothetical involving John and Katie, a married couple employed by the

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

filed a sexual harassment complaint. Shortly thereafter, John was

demoted, despite his excellent employment evaluations. The employer

claimed the demotion was a mere coincidence. John was convinced he had

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

recognize his claim ?

Title VII undoubtedly prohibits employers from firing or otherwise

adversely treating employees for engaging in a protected activity.1

Protected activityoccurs when an employee opposes an unlawful

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.

142 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.”).

644CAPITAL UNIVERSITY LAW REVIEW [38:643

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

third-parties who do not personally perform a protected activity, but are

treated adversely by their employers in retaliationfor another’s

engagement in a protected activity. This situation frequently arises when

two relatives work for the same employer and the employer fires one in

retaliation for the other filing a discrimination charge or engaging in

another form of protected activity.3

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

retaliation claims. Some circuits allow third-party retaliation claims on the

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

circuits prohibit such claims, deeming them inconsistent with the plain text

of Title VII.5

This comment addresses the circuit split on this issue and proposes that

all jurisdictions should permit such third-party claims.Part II 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 third-party retaliation cases, focusing on the rationale behind

the holding in each case. Part IV examines recentSupreme Court

2Id. (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”).

3See discussion infra Part II.C.2 .

4See 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”).

5See 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).