Thy Fiance Doth Protest Too Much: Third-party Retaliation Under Title Vii After Thompson v. North American Stainless, Lp - Dodson D. Strawbridge

• Publication year: 2012

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Thy Fiance Doth Protest Too Much: Third-Party Retaliation Under Title VII After Thompson v. North American Stainless, LP

I. Introduction

"To retaliate against a man by hurting a member of his family is an ancient method of revenge . . . ."¹ In Thompson v. North American Stainless, LP,² the United States Supreme Court reversed the United States Court of Appeals for the Sixth Circuit by holding that Title VII of the Civil Rights Act of 1964 (Title VII)³ confers standing to sue upon an individual who suffers unlawful retaliation, even though that individual did not engage in any statutorily-protected conduct.⁴ Prior to Thompson, lower courts disagreed about whether third-party retaliation victims had proper standing to file suit under Title VII.⁵ In

1. NLRB v. Advertisers Mfg. Co., 823 F.2d 1086, 1088 (7th Cir. 1987).

2. 131 S. Ct. 863 (2011).

3. 42 U.S.C. §§ 2000e-2000e-17 (2006 & Supp. IV 2010).

4. Thompson, 131 S. Ct. at 870.

5. Compare, e.g., Smith v. Riceland Foods, Inc., 151 F.3d 813, 819 (8th Cir. 1998) (noting that proper standing to vindicate a claim under § 704 requires that the plaintiff actually engaged in some protected conduct), with Anjelino v. New York Times Co., 200 F.3d 73, 90-91 (3d Cir. 2000) (holding that standing to sue under Title VII extends to the

Thompson, the Supreme Court acknowledged the expansive standard applied in various lower courts that explicitly permitted third-party retaliation claims under Title VII,⁶ but ultimately rejected the extreme positions advocated by the parties in favor of a more moderate analytical framework.⁷ The Court applied the zone of interests test⁸ to identify the class of individuals who have proper standing to pursue Title VII third-party retaliation claims.⁹ Given the recent increase in retaliation claims,¹⁰ Thompson potentially exposes employers to more retaliation liability than ever before. However, significant litigation is still necessary to determine which combinations of adverse employment actions and third-party relationships Title VII protects.

II. Factual Background

In 1997, North American Stainless, LP (NAS) hired Eric Thompson.¹¹ Three years later, Thompson initiated a romantic relationship with a co-worker, Miriam Regalado. By early 2003, Thompson and Regalado were engaged to be married, and NAS management was aware of their engagement. On February 13, 2003, the united States Equal Employment Opportunity Commission (EEOC) informed NAS that Regalado filed a charge alleging unlawful sex discrimination and, on March 7, 2003, NAS terminated Thompson's employment. Thompson subsequently filed a charge with the EEOC, alleging NAS unlawfully retaliated against him because of Regalado's statutorily-protected conduct.¹²

limits established by Article III of the United States Constitution).

6. See, e.g., Hackett v. McGuire Bros., Inc., 445 F.2d 442, 447 (3d Cir. 1971) (concluding that mere Article III standing is sufficient to bring suit under Title VII).

7. Thompson, 131 S. Ct. at 868-70.

8. See Ass'n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 152-53 (1970) (holding that, assuming a potential litigant satisfies the Constitutional standing requirements of injury, causation, and redressability, to maintain proper prudential standing, the party's interests must arguably be within the zone of interests Congress intended the applicable statute to protect).

9. Thompson, 131 S. Ct. at 870.

10. Press Release, EEOC Reports Job Bias Charges Hit Record High of Nearly 100,000 in Fiscal Year 2010, EEOC.GOV (Jan. 11, 2011), http://www.eeoc.gov/eeoc/newsroom/rele ase/1-11-11.cfm. For the first time since Congress enacted Title VII, retaliation claims surpassed race discrimination claims as the charge most commonly filed with the EEOC. Id. In fiscal year 2010, individuals filed 36,258 retaliation claims, compared to 35,890 race discrimination claims. Id.

11. Thompson v. N. Am. Stainless, LP, 567 F.3d 804, 806 (6th Cir. 2009), rev'd, 131 S.

Ct. 863 (2011).

12. Id.

After completing an investigation, the EEOC found "reasonable cause to believe that [NAS] violated Title VII."¹³ Thompson filed suit against NAS, alleging the company violated the anti-retaliation provision of Title VII¹⁴ by terminating his employment in retaliation for his fiance's

EEoC charge.¹⁵ The United States District Court for the Eastern

District of Kentucky granted summary judgment in favor of NAS because Thompson did not personally engage in any statutorily-protected conduct.¹⁶ On appeal, a three-judge panel of the Sixth Circuit reversed, holding that Title VII prohibits employers from retaliating against employees who are closely associated with an individual engaged in protected conduct, even when the employee who was the target of the retaliation did not.¹⁷

The court of appeals granted a rehearing en banc and affirmed the district court's decision, holding that Thompson did not have proper standing to pursue a Title VII retaliation claim because he did not personally engage in any protected conduct.¹⁸ The en banc majority relied upon precedent from other circuits that refused to recognize § 704¹⁹ retaliation claims where the individual plaintiff did not personally engage in any protected conduct.²⁰ To resolve the split amongst the circuits,²¹ the Supreme Court granted certiorari.²² Subsequently, the Court reversed the court of appeals decision, holding

13. Id.

14. 42 U.S.C. § 2000e-3(a) (2006).

15. Thompson, 567 F.3d at 806.

16. Thompson v. N. Am. Stainless, LP, 435 F. Supp. 2d 633, 636-40 (E.D. Ky. 2006).

17. Thompson v. N. Am. Stainless, LP, 520 F.3d 644, 646 (6th Cir. 2008), revd en banc, 567 F.3d 804 (6th Cir. 2009), rev'd, 131 S. Ct. 863 (2011).

18. Thompson, 567 F.3d at 811.

19. 42 U.S.C. § 2000e-3(a).

20. Thompson, 567 F.3d at 809-11 (citing Fogleman v. Mercy Hosp., Inc., 283 F.3d 561 (3d Cir. 2002); Smith v. Riceland Foods, Inc., 151 F.3d 813 (8th Cir. 1998); Holt v. JTM Indus., 89 F.3d 1224 (5th Cir. 1996)).

21. In addition to those circuits that refused to recognize retaliation claims where the victim did not engage in any protected conduct, see sources cited, supra note 20, several other circuits have articulated standards that protect third parties from retaliation, even if those parties did not engage in any protected conduct. See, e.g., Wu v. Thomas, 863 F.2d 1543, 1545-50 (11th Cir. 1989) (permitting a husband's retaliation claim to proceed where he alleged retaliation because his wife filed discrimination charges against their mutual employer); McDonnell v. Cisneros, 84 F.3d 256, 258, 262-63 (7th Cir. 1996) (holding that a cause of action for retaliation exists when the defendant reassigned the plaintiff as punishment for failing to prevent his subordinate from filing a sexual harassment complaint).

22. Thompson v. N. Am. Stainless, LP, 131 S. Ct. 863 (2011), cert. granted, 130 S. Ct. 3542 (U.S. June 29, 2010) (No. 09-291).

that Title VII confers standing upon "person[s] aggrieved"²³-those whose interests are "arguably [sought] to be protected by the stat-utes"-and that Thompson was such a person.²⁴ The Supreme Court remanded the case to the trial court to determine whether Thompson suffered unlawful retaliation under § 704.²⁵

III. Legal Background

A. The Elements of a Title VII § 704 Retaliation Claim

Congress enacted Title VII²⁶ to eliminate employment discrimination on the basis of certain immutable characteristics.²⁷ Section 703(a) prohibits covered employers from discriminating against employees or potential employees on the basis of race, color, national origin, religion, or sex.²⁸ Further, § 704 prohibits employers from retaliating against individuals who oppose any unlawful employment practice or participate in an investigation into allegedly unlawful employment practices under Title VII.²⁹ Specifically, Congress enacted § 704 to protect individuals who exercise their rights under § 703 by prohibiting retaliation that would dissuade similarly-situated, reasonable employees from engaging in statutorily-protected conduct.³⁰ To establish a prima facie case of retaliation under § 704, the plaintiff must (1) have engaged in some type

23. 42 U.S.C § 2000e-5(f) (2006).

24. Thompson, 131 S. Ct. at 870 (alteration in original) (quoting Nat'l Credit Union Admin. v. First Nat'l Bank & Trust, 522 U.S. 479, 495 (1998)).

25. Id. at 871.

26. 42 U.S.C §§ 2000e-2000e-17 (2006 & Supp. IV 2010).

27. Price Waterhouse v. Hopkins, 490 U.S. 228, 239 (1989).

28. 42 U.S.C § 2000e-2(a). The statute provides:

It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.

29. 42 U.S.C § 2000e-3(a). The statute provides that:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

30. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 77 (2006) (Alito, J., concurring).

of protected conduct, (2) suffered an adverse employment action, and (3) demonstrate a causal link between the statutorily-protected conduct and the adverse employment action.³¹

Title VII protects two distinct varieties of employee conduct: "oppos[i-tion]," where an employee reasonably opposes a plausibly...