Crawford's Expansive Definition of "oppose" Breathes New Life Into Pure Third-party Retaliation Claims Under Title Vii

• Publication year: 2010
• Citation: Vol. 34 No. 02

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 34, No. 2WINTER 2011

COMMENTS

Crawford's Expansive Definition of "Oppose" Breathes New Life into Pure Third-Party Retaliation Claims Under Title VII

Michael Costello(fn*)

I. Introduction

Eric Thompson worked as a metallurgical engineer for North American Stainless, LP (Stainless) for six years.(fn1) Three years into Thompson's employment, Stainless hired Miriam Regalado as a quality-control engineer.(fn2) Shortly after Thompson met Regalado, the two began dating.(fn3) Their relationship was common knowledge at the company, and the couple eventually became engaged to be married.(fn4)

While employed at Stainless, Thompson's fiancée, Regalado, felt that her supervisors treated her differently because she was a woman.(fn5) The open disrespect Regalado's supervisors displayed led to disrespect by Regalado's subordinate employees.(fn6) Eventually, Regalado suspected one of her subordinate employees was deliberately sabotaging equipment in order to have Regalado removed.(fn7) When her concerns were not addressed by Stainless, Regalado filed a complaint with the Equal Employment Opportunity Commission (EEOC).(fn8) The complaint alleged that Stainless discriminated against her based on her gender.(fn9) Three weeks after Stainless received Regalado's complaint, the company terminated her fiancé, Thompson, despite giving Thompson a favorable evaluation only three months earlier.(fn10)

In response, Thompson filed suit in federal district court alleging that Stainless unlawfully retaliated against him in violation of Title VII's anti-retaliation provision.(fn11) This provision prohibits employers from taking adverse actions against an employee as a result of the employee's opposition to an unlawful employment practice or the employee's participation in an investigation of an unlawful employment practice.(fn12) If an employee raises a Title VII concern, the employer may not retaliate against that employee.(fn13)

Despite Thompson's allegations that Stainless fired him because of a Title VII complaint, the district court dismissed his claim.(fn14) The court held that Title VII's anti-retaliation provision does not protect Thompson because the provision requires that an individual personally engage in a protected activity; that is, the individual must oppose an unlawful employment practice or participate in an investigation.(fn15) Because Thompson had not personally opposed or participated, the court ruled that Thompson had not done anything that qualified as a protected activity.(fn16) On appeal, the Sixth Circuit affirmed the district court's reading of the statute.(fn17) The Sixth Circuit held that while Regalado, by filing a complaint with the EEOC, had engaged in a protected activity and, thus, was protected from any retaliatory action by Stainless, this same provision did not protect her fiancé, Thompson.(fn18) In so holding, the Thompson court joined the majority of circuit courts in the view that Title VII's anti-retaliation provision does not provide protection to close associates and relatives who are victims of adverse employment actions as retaliation against an employee raising a Title VII claim.(fn19)

The Thompson court's holding aligns with other courts' narrow reading of the class protected by Title VII's anti-retaliation provision.(fn20) Although the Supreme Court has recognized that the purpose of the anti-retaliation provision is to encourage employees to bring claims of discrimination and "deter the many forms that effective retaliation can take,"(fn21) the majority of courts continue to deny the anti-retaliation provision's protection to victims of third-party retaliation such as Thompson.(fn22)

But in Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, the Supreme Court greatly expanded the scope of protected classes by expanding the definition of how an individual may "oppose" an unlawful employment practice and what individuals qualify for protection under Title VII's anti-retaliation provi-sion.(fn23) Under Crawford's definition, opposing an unlawful employment practice may be accomplished without active behavior, and protection may even be afforded to those who harbor silent opposition.(fn24)

Crawford's expansive definition of the term oppose should be read to extend protection to previously unprotected third-party victims of retaliation. The policy of Title VII-to eradicate discrimination in the workplace(fn25)-as well as the policy of Title VII's anti-retaliation provision-to foster an environment in which employees will not be dissuaded from bringing forward claims of discrimination(fn26)-mandates that courts extend the protection of these provisions to those who are victims of retaliation as a result of a relationship with a party who brings forward a Title VII discrimination claim. The expanded definition of oppose provided by Crawford allows courts to make such an extension.

This Comment argues that courts should read Crawford's expanded definition of oppose to extend the protection of Title VII's anti-retaliation provision to pure(fn27) third-party victims of retaliation. Part II of this Comment presents a history of Title VII's anti-retaliation provision. Part III discusses the holding of Crawford and its potential impact on pure third-party retaliation claims under Title VII. Part IV explains how reading Crawford to allow third-party retaliation claims furthers the policy goals of Title VII. Part V concludes that courts should read Crawford as extending Title VII's anti-retaliation protections to victims of pure third-party retaliation.

II. Requirements of Title VII's Anti-Retaliation Provision and the History of Pure Third-Party Retaliation Claims

A principal goal of Title VII is to end discrimination in the workplace.(fn28) To achieve this goal, Title VII contains several provisions that protect employees facing discrimination, harassment, or retaliation.(fn29) The anti-retaliation provision of Title VII is essential to accomplishing the purpose of the statute. This Part explains the purpose and language of the anti-retaliation provision, the requirements of a retaliation claim, and the way courts have viewed the anti-retaliation claim provisions as related to pure third-party claims.

A. Purpose and Language of Title VII's Anti-Retaliation Provision

Title VII prohibits qualified employers(fn30) from discriminating against any individual on the basis of race, color, religion, sex, or national origin.(fn31) To achieve the primary goal of Title VII-ending workplace discrimination-the statute relies on individual employees who are willing to bring forward instances of discrimination by filing claims and acting as witnesses.(fn32)

Section 704(a) of Title VII sets forth the anti-retaliation provision, which protects employees who bring claims of discrimination against an employer.(fn33) The primary purpose in enforcing the anti-retaliation provision of Title VII is to "maintain[ ] unfettered access to statutory remedial mechanisms" for employees.(fn34) Because enforcement of Title VII relies on individuals bringing forth claims, the statute must protect employees who allege an employer is engaged in a discriminatory practice. If an employee who raises a concern about her company's adverse treatment of women is fired or demoted as a result of raising that concern, not only will the affected employee be less likely to maintain her claim, but other employees will also be less likely to bring claims of their own. If not for the anti-retaliation provision, the effectiveness of Title VII would be greatly reduced.(fn35) By attempting to protect employees who raise claims of discrimination, the anti-retaliation provision aims at fostering an environment in which employees feel comfortable bringing forward claims of discrimination, increasing the effectiveness of the anti-discrimination provisions of Title VII.(fn36)

The language of the anti-retaliation provision makes it unlawful for an employer to discriminate against an employee because "he has opposed any practice made an unlawful employment practice by this Title, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing."(fn37) Thus, to qualify for protection, one must oppose an unlawful employment practice or participate in an investigation.(fn38)

There is no requirement that a party seeking protection under the provision show that actual discrimination took place.(fn39) As part of the prima facie case for retaliation, the plaintiff need only establish that he had a reasonable belief that the employer's employment practice was unlawful to qualify for protection.(fn40) Thus, if an employee believes that her employer is engaged in a discriminatory practice and files a complaint, that employer cannot retaliate, even if an investigation reveals that the employer did not violate Title VII.(fn41) This broad scope of protection serves the policy goals of Title VII by encouraging employees to invoke the investigative measures triggered by a Title VII claim(fn42) without fear that their claims must be successful to be protected.(fn43) This extended protection may make succeeding on a claim of retaliation easier than succeeding on a claim of discrimination under the substantive protections of Title VII, Section 703. That an employee seeking protection under the anti-retaliation...