Third-party Retaliation Problems

• Publication year: 2022

Third-Party Retaliation Problems

Alex B. Long

THIRD-PARTY RETALIATION PROBLEMS

Alex B. Long^*

Table of Contents

Introduction..........................................................................................256

I. An Introduction to Third-Party Retaliation Problems in Employment Discrimination Statutes.....................................259

A. Retaliation: The Prima Facie Case ......................................... 259
B. Robinson v. Shell Oil Co.: Who is an Employee? .................... 260
C. Burlington Northern & Santa Fe Railway v. White: What Qualifies as Actionable Retaliation? ...................................................... 262
D. Thompson v. North American Stainless, LP: Who is an Aggrieved Person? .................................................................................. 263

II. Third-Party Problems...............................................................266

A. Retaliation Against an Employee for Opposing Discrimination Against a Nonemployee ........................................................... 266
B. Employer Retaliation Targeting Nonemployee Third Parties ... 271

1. The Majority Approach: A Narrow Interpretation of the Aggrieved Person Concept ................................................ 271
2. The Minority Approach: A More Expansive Interpretation of the Aggrieved Person Concept ................................................ 273

III. Some Preliminary Problems Regarding the Narrow Approach to Third-Party Retaliation Cases...........................................276

A. Preliminary Problems with Decisions Involving Retaliation Against an Employee for Opposing Discrimination Against a Nonemployee .......................................................................... 276
B. Preliminary Problems with Decisions Involving Employer Retaliation Impacting Nonemployee Third Parties .................. 278

IV. How the Narrow Approach to Retaliation Cases Involving Third Parties Illustrates the Shortcomings of Employment Retaliation Law More Generally...........................................279

A. The Shortcomings of the Reasonable Belief Standard .............. 279
B. The Shortcomings of Title VII's Narrow Statutory Language ... 284

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1. Language Prohibiting an Employer from Retaliating Against "His Employees" .............................................................. 284
2. The Absence of Language Providing a Remedy to an Individual Aggrieved by an Employer's Retaliation............................ 286
3. Statutory Language that Defines Unlawful Employer Action in a Narrow Manner ................................................................ 287

C. The Failure to Reflect the Realities of the Modern Workplace .............................................................................. 291

1. The Problem of Multiple Employers and the Presence of Third Parties in the Workplace ................................................... 291
2. The Likelihood for More Retaliation Involving Third Parties..................................................................... 293
3. The Failure of the Law to Address the Realities of the Modern Workforce as Applied to Workplace Retaliation ................ 294

D. The Failure of Courts to Treat Retaliation and Discrimination as Being Connected..................................................................... 295

V. Solutions.....................................................................................297

A. Interpreting Title VII's Anti-Retaliation Provision to Take into Account the Third-Party Effects of Discrimination .................. 297
B. Interpreting Title VII's Anti-Retaliation Provision to Advance the Statute's Anti-Discrimination Purpose .................................... 300

1. Retaliation Against an Employee for Opposing Discrimination Against a Nonemployee: Revisiting the Reasonable Belief Standard ........................................................................... 300
2. Employer Retaliation Targeting Nonemployee Third Parties: Recognizing Third-Party Harms ........................................ 304

Conclusion ............................................................................................. 305

Introduction

In Thompson v. North American Stainless, LP, the United States Supreme Court dealt with a particularly pernicious form of employer retaliation.¹ The case involved the surprisingly common fact pattern in which an employer retaliates against an employee who has complained about employment discrimination by taking action against a different employee, usually a relative or friend.² The employer in this case would obviously recognize that it would be illegal to fire the complaining employee. But if the employer was angered by the charge of

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discrimination and wished to deter other employees from making such charges in the future, retaliating against the complaining employee by targeting a coworker might be an effective, cold-blooded solution. Indeed, prior to the Court's decision in Thompson, the majority of courts held that Title VII did not prohibit an employer from doing so.³ But in Thompson, the Court held that Title VII prohibits this form of third-party retaliation.⁴

One might have thought that this decision would have limited the number of instances of employer retaliation involving third parties. But the human impulse to retaliate against those who have wronged us is strong.⁵ Therefore, it should not be surprising to find that some employers have devised other ways to retaliate against employees when third parties are somehow involved. Consider the case of an employee who complains to her employer about workplace discrimination. The employer responds not by firing the complaining employee or even a coworker a la Thompson, but by taking against action a nonemployee friend or relative—for example by pressuring the friend or relative's employer to fire that employee. Or perhaps an employee is fired in response to reporting to his employer that a coworker has been sexually harassing an employee of a different employer with whom the coworker comes into contact as a result of his employment. Would either individual have a retaliation claim under Title VII?

As this Article discusses, neither employee has a valid Title VII retaliation claim under the majority approaches to these situations.⁶ Stated succinctly, this Article argues that these outcomes are wrong, both as a matter of law and policy. But this Article also uses these scenarios in order to make a broader point about the shortcomings of employment retaliation law in general and its specific failure to adequately take into account the interests of third parties.

The primary goal of employment discrimination statutes is to end workplace discrimination on the basis of race, sex, or other enumerated characteristics.⁷ Title VII, like most statutes regulating the workplace, also contains a provision limiting an employer's ability to retaliate against an employee who somehow opposes unlawful conduct or participates in a legal action concerning such

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conduct.⁸ In this respect, statutory anti-retaliation provisions serve the broader, primary goal of the statute in question. Title VII's anti-retaliation provision exists to protect the willingness and ability of individuals to oppose or otherwise participate in the attempt to eliminate employment discrimination.⁹ Thus, Title VII's anti-retaliation provision plays a crucial support role in the fight against employment discrimination.

Currently, however, courts tend to treat retaliation cases involving third parties to the employer-employee relationship as strange outliers in the area of employment retaliation law. Indeed, as this Article discusses, courts frequently treat such cases as having little connection to employment discrimination law more generally, despite the vital role that preserving the ability of employees to sue in the event of retaliation can play in the fight against employment discrimination. Rather than treating these kinds of retaliation claims—and retaliation claims more generally—as part and parcel of Title VII's quest to eliminate workplace discrimination, courts tend to view such claims as involving a narrow dispute between the parties in question, instead of having broader implications.

As the cases involving employer retaliation directed at nonemployees illustrate, the courts' often limited view of the role of Title VII's anti-retaliation provision tends to prevent the provision from reaching its full potential in the fight against workplace discrimination. These cases illustrate the broad tendency of courts to adopt narrow interpretations of statutory provisions and judicial decisions involving employment retaliation. They also illustrate the tendency of courts to ignore some of the third-party effects of retaliation. This includes the immediate impact on the individual who suffers an adverse action when an employee complains about unlawful discrimination occurring in the workplace, the increased potential for other employees to be subjected to workplace discrimination when the law permits an employer to engage in retaliation, and the effects upon society more generally when the law permits workplace discrimination and retaliation to flourish.

In order to fulfill Title VII's anti-discrimination purpose, courts need to approach retaliation cases starting from the premise that robust protection from retaliation is essential to effectuating the statute's anti-discrimination purpose.

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This is as true for cases in which third parties are swept up in a dispute as it is for other kinds of retaliation cases. A court that keeps the interconnected nature of Title VII's anti-retaliation and anti-discrimination goals in mind is more likely to give a fair reading to the relevant legal concepts in a retaliation case, including cases involving third parties.

This Article focuses on these kinds of...