THOUGHT LEADERSHIP/ALERTS

“Association discrimination” is an increasingly-litigated area of employment law. Here, the employer is held liable for allegedly having discriminated against an employee—not because of their employee’s protected status, but because of his or her association with an individual in a class protected from discrimination under Title VII (race, color, religion, national origin, sex, and pregnancy).[1] Recent cases—most frequently brought as race discrimination claims—indicate that federal courts are increasingly willing to recognize that Title VII prohibits association discrimination.[2] However, a recent Sixth Circuit opinion indicates a limit on association discrimination where the plaintiffs allege that the employer retaliated against them because of their association with an individual whom Title VII protects from retaliation.

Title VII’s anti-retaliation provision, § 704(a), provides: “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.” 42 U.S.C. § 2000e-3(a)(emphasis added). Federal courts differ as to whether this anti-retaliation provision creates a cause of action for third-party retaliation against employees who did not personally engage in protected activity.

In Thompson v. North Amer. Stainless, LP, No. 07-5040 (6th Cir. June 5, 2009), the U.S. Court of Appeals for the Sixth Circuit, sitting en banc, declined to expand the anti-retaliation protection under § 704(a) to a cause of action for passive, associated third-parties.[3] The court vacated a previous panel opinion[4] and held that § 704(a) does not extend to retaliation claims where the plaintiff did not himself engage in the protected activity.

In Thompson, North American Stainless (NAS) employed the plaintiff, Eric Thompson, a metallurgical engineer, and his then-fiancée (now his spouse), Miriam Regalado. In September 2002, Regalado filed a charge with the EEOC alleging gender discrimination by NAS supervisors. Thompson alleged that NAS was formally notified of Regalado’s charge with the EEOC in mid-February 2003. Slightly more than three weeks later, NAS terminated Thompson for “performance-based reasons.” Thompson alleged that he was terminated in retaliation for Regalado’s EEOC charge against NAS.The District Court entered summary judgment for NAS, holding that Thompson failed to state a claim under Title VII’s anti-discrimination and anti-retaliation provisions.

Thompson appealed, and a 2–1 majority panel of the Sixth Circuit reversed the District Court. The panel conceded that the statutory text does not extend to persons who do not personally engage in the protected activity. However, it held associational retaliation implicitly illegal because it undermines the primary purposes of the provision of the anti-retaliation provisions of Title VII. The panel found that holding otherwise would do violence to long-established public policy.

After a rehearing en banc in December 2008, a 10–6 majority vacated the prior decision and held, “the authorized class of claimants is limited to persons who have personally engaged in protected activity by opposing a practice, making a charge, or assisting or participating in an investigation.” In other words, “a plaintiff bringing a retaliation claim under Title VII must establish that he personally engaged in the protected conduct.”[5] The court found that Thompson had not, as a matter of law, stated a viable claim for third-party retaliation under Title VII, because he had not “engaged personally in any protected activity.”

Discussing the Supreme Court’s recent liberal reading of Title VII provisions in Burlington Northern & Santya Fe Ry. Co. v. White, 548 U.S. 53(2006), the panel found that “[t]he plain text simply cannot be read to encompass ‘piggyback’ protection of employees like Thompson who, by his own admission, did not engage in protected activity, but who is merely associated with another employee who did oppose an alleged unlawful employment practice.”

The Sixth Circuit did not completely shut the door on associational retaliation claims. All of the judges conceded that, at a minimum, Thompson represents a conflict between the anti-retaliation provision’s plain meaning and Title VII’s general policy objectives. Also, the Supreme Court’s holding in Crawford v. Metro. Gov’t Nashville & Davidson County, Tenn., 129 S. Ct. 846 (2009) will surely make future prosecution of these alleged retaliation cases against employers attractive to the plaintiff’s bar—in his concurring opinion in Crawford, Justice Alito stated that “it is questionable whether silent opposition is covered by the opposition clause of [the anti-retaliation provision of Title VII].”

Because the EEOC is the gatekeeper of retaliation claims under Title VII, and the number of retaliation charges at the EEOC continues to grow,[6]  employers are well advised to heed the following practical advice for avoiding claims based on association discrimination or retaliation:

• Create generally-applicable preventive and corrective measures to address any discriminatory practices.
• Continue to base adverse employment decisions—termination, demotion, reductions in pay, etc.—on legitimate and non-discriminatory factors.
• Document performance problems thoroughly and contemporaneously to support any adverse employment actions taken.
• Train managers, supervisors, and human resources staff so that they can identify potential instances of association discrimination or retaliation.

1. The recently passed Genetic Information Nondiscrimination Act (GINA) of 2008, effective on December 21, 2009, prohibits employment discrimination based on genetic information. A cause of action for association discrimination based on the genetic information of an associate presumably will lie after that date. [Back to reference]
2. A discussion of the Americans with Disabilities Act’s express prohibition of association discrimination, and any state law equivalents, is beyond the scope of this article.
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3. The Sixth Circuit has jurisdiction over federal districts in Kentucky, Ohio, Michigan, and Tennessee. [Back to reference]
4. Thompson v. North Amer. Stainless, LP, 520 F.3d 644, 645-46 (6th Cir. 2008). [Back to reference]
5. To establish a Title VII retaliation claim, a plaintiff must establish that: (1) he engaged in activity protected by Title VII; (2) this exercise of protected right was known to the defendant; (3) the defendant thereafter took an adverse employment action against the plaintiff; and (4) there was a causal link between the protected activity and the adverse employment action. Martin v. Toledo Cardiology Consultants, Inc., 548 F.3d 405, 412 (6th Cir. 2008). [Back to reference]
6. See U.S. EEOC website at http://www.eeoc.gov/stats/charges.html. In the last 3 years (FY 2006-2008), the EEOC reports a steady climb in Title VII retaliation charges, i.e. 19,560 (25.8%), 23,371 (28.3%) & 28,698 (30.1%). [Back to reference]