Tread lightly: third-party retaliation claims after Thompson v. North American Stainless.

• Author: Underwood, Brandon

1. INTRODUCTION II. Background A. History of Title VII of the Civil Rights Act of 1964 1. Roosevelt and Executive Order 8802 2. Truman and the Committee on Civil Rights 3. Kennedy, Johnson, and the Great Society B. Title VII, the Anti-Retaliation Clause, and the EEOC 1. Title VII's Anti-Retaliation Clause 2. The Establishment of the EEOC C. The Courts and Third-Party Retaliation Claims 1. Recognizing a Cause of Action for Third Parties 2. Refusing to Recognize a Third-Party Retaliation Claim D. The Supreme Court Decides Thompson III. ANALYSIS A. The Sixth Circuit's Analysis in Thompson II 1. A Better Standard for the Sixth Circuit 2. Third-Party Retaliation: Some in, Some out B. The Supreme Court's Approach to Thompson 1. The Supreme Court's Retaliation Surprise 2. Does Thompson Go Far Enough? 3. What's an Employer to Do? 4. What Are the Lower Courts Doing with Thompson? IV. RECOMMENDATION A. Modify Policies to Accommodate Thompson 1. A Minor Relationship 2. Knowledge of the Relationship 3. Retaliatory Intent B. Third-Party Retaliation Under the ADA and the ADEA C. Look to the EEOC for Guidance 1. Rely on the EEOC's Specific Identifications 2. Tread Lightly V. CONCLUSION I. Introduction

   By recognizing a cause of action for third-party retaliation, the Supreme Court's decision in Thompson v. North American Stainless, LP (1) repudiated the conclusions of four Circuit Courts of Appeals. (2) Although a cause of action for third-party retaliation is a significant expansion of Title VII's retaliation protection, employers can minimize potential detrimental effects. Employers must recognize the scope of third-party retaliation protection and adopt appropriate responses to accommodate the new protection.

   Part II of this Note traces the general history and purpose of Title VII, examines Title VII's statutory provisions, including the anti-retaliation provision, and concludes with an overview of both early and late third-party retaliation cases. Part III analyzes the Sixth Circuit's Thompson decision and examines responses to that decision. Part III then analyzes the Supreme Court's Thompson decision, subsequent scholarly commentary, and two subsequent district court orders analyzing Thompson. Finally, Part IV notes some important considerations for employers in adopting new policies and procedures in light of Thompson. These considerations include the apparent requirements for bringing a third-party retaliation claim, the likelihood that third-party retaliation protection will extend to other laws, and the need for the EEOC to identify some relationships entitled to third-party retaliation protection. Notwithstanding these specifically identified relationships, employers should be mindful of the possibility that courts will expand the scope of third-party retaliation protection.

2. Background

   This Part proceeds in four directions. The first describes briefly the history of the Civil Rights Act of 1964. Following the historical primer is an examination of some of Title VII's provisions and a description of the role of the EEOC. Court decisions, in which some courts did, and some courts did not, recognize third-party retaliation claims are then discussed. Finally, a brief description of the Supreme Court's decision in Thompson v. North American Stainless concludes the Part.

   1. History of Title VII of the Civil Rights Act of1964

      On July 2, 1964, President Lyndon Johnson delivered a televised speech hailing the passage of the Civil Rights Act of 1964, which included Title VII. (3) Before Title VII, the President asserted, people of all races and colors fought America's wars and built America's prosperity, but some had been denied equality. (4) President Johnson declared that from that day forward, all Americans would "be equal in the polling booths, in the classrooms, [and] in the factories." (5) President Johnson concluded the speech by asking Americans to set aside divisions and to focus the nation's resolve on banishing from America "the last vestiges of injustice." (6)

      1. Roosevelt and Executive Order 8802

         The roots of Title VII took hold during the administration of President Franklin Roosevelt. (7) Spurred by the need for employees in defense industries and demands for equality made by black civil rights and labor organizers, President Roosevelt signed Executive Order 8802 in June 1941. (8) Although it lacked the protection against sex discrimination that eventually appeared in Title VII of the Civil Rights Act, (9) the Executive Order avowed there would be "no discrimination in the employment of workers in defense industries or government because of race, creed, color, or national origin." (10) The President ordered the government to adopt measures to ensure effective administration of defense training programs without discrimination and required all government contracts to include a provision prohibiting discrimination against members of the protected categories. (11)

         Foreshadowing Title VII's creation of the Equal Employment Opportunity Commission (EEOC), (12) the Order established a Committee on Fair Employment Practices (FEPC). (13) The FEPC was to "receive and investigate complaints of discrimination" and "take appropriate steps to redress grievances ... it [found] to be valid." (14) However, the FEPC failed to strike a powerful blow against discrimination. (15) It received only minimal funding, lacked any enforcement method, and deterred by southern obstinacy, failed to achieve success integrating even minor public services such as Washington, D.C.'s transit system. (16)

      2. Truman and the Committee on Civil Rights

         Civil rights leaders were dissatisfied with the slow progression of civil rights legislation in the United States after World War II. (17) In response to black leaders' pleas, President Harry Truman organized a Committee on Civil Rights in 1946. (18) The Committee's report, for which Truman initially pledged support, recommended far-reaching civil rights measures such as the creation of a civil rights commission, voter protections, desegregation of the Armed Forces, and a permanent FEPC. (19) In a 1947 speech to the NAACP, Truman asserted there was no justification "for discrimination because of ancestry, or religion, or race, or color." (20) Despite his soaring rhetoric, Truman never gave the measures the support necessary to achieve passage. (21) Few changes occurred that abated discrimination against black Americans between the end of World War II and the close of the 1940s. (22)

      3. Kennedy, Johnson, and the Great Society

         Impediments to full enjoyment of civil rights by black and minority Americans remained largely intact when President John Kennedy took office in 1961. (23) Discrimination based on racial and gender classifications was commonplace. (24) Pervasive race discrimination impelled President Kennedy to introduce civil rights legislation to Congress. (25) Title VII, signed by President Lyndon Johnson in July 1964, extended to women protection against discrimination, a notable addition to the race discrimination measures proffered by Roosevelt and Truman. (26)

         Title VII contained a provision prohibiting employers from retaliating against employees exercising Title VII rights. (27) Finally, Title VII created the EEOC, which opened its doors to an immediate backlog of complaints in 1965. (28) Because it initially lacked enforcement authority, the EEOC directed its focus to investigating claims and interpreting the statutory language of Title VII, thereby educating the public and employers. (29)

         Title VII was also the cornerstone of a broader economic and social agenda the Johnson Administration called the Great Society. (30) The Great Society sparked a flourish of legislative activity that created programs like Medicare and Operation Headstart, civil rights measures like the Voting Rights Act of 1965, and a slew of other laws meant to diminish social and economic disparities. (31) Nearly one year after the passage of Title VII, President Johnson proclaimed that his goal was "not just equality as a right ... but equality as a fact and equality as a result." (32)

   2. Title VII, the Anti-Retaliation Clause, and the EEOC

      The substantive provision of Title VII prohibits workplace discrimination on the basis of "race, color, religion, sex, or national origin." (33) The law prohibits discrimination against members of the protected classes in hiring or firing. (34) It also forbids discrimination regarding pay, "terms, conditions, or privileges of employment." (35)

      1. Title VII's Anti-Retaliation Clause

         In addition to the substantive provision barring workplace discrimination, Title VII prohibits employers from retaliating against employees who engage in protected activities. (36) This provision is called the anti-retaliation clause. (37) The anti-retaliation clause's plain text shields employees engaging in two types of protected activity. (38) The "opposition conduct" provision (39) protects employees who are demoted or terminated because they "opposed any ... [discriminatory] employment practice." (40) The second type of activity protected under the anti-retaliation clause is participation activity. (41) This second provision prohibits retaliation against employees who "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing." (42)

      2. The Establishment of the EEOC

         The EEOC "is empowered ...to prevent any person from engaging in any [discriminatory] practice." (43) The EEOC receives complaints of discrimination and conducts investigations to determine whether "reasonable cause" exists to believe that discrimination occurred. (44) In some cases, the EEOC may bring a civil action for enforcement of the complainant's rights. (45)

         The EEOC furnishes employers and others subject to Title VII with "technical assistance" to promote compliance. (46) Consistent with this statutory duty, the EEOC publishes a Compliance Manual to encourage...