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

AuthorJohn J. Feeney
PositionJuris Doctor candidate, May 2010
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
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.”).
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
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).

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