More often than not, a grand jury witness is not prosecuted for the underlying inquiry that caused his appearance to begin with, but rather the way he responded to the government's investigation.  So it seems with “retaliation,” the claim du jour of plaintiffs’ employment counsel.  The underlying job discrimination claim – frequently a trivial matter – is often forgotten in favor of the charge that the employer retaliated against the employee for asserting the discrimination claim.  Defending such lawsuits presents special difficulties, perhaps because jurors, while reluctant to assume that discrimination occurred, readily identify with the notion that being accused of wrongdoing (even when there is no actual wrongdoing) will likely draw a negative reaction from an employer.

The arsenal for plaintiffs’ lawyers in the “retaliation” realm has grown significantly in recent years.  Recall the U.S. Supreme Court's 2006 decision in Burlington Northern & Sante Fe Railway Co. v. White, in which the Court confirmed that a Title VII retaliation claim may be asserted without an "adverse employment action" being involved, and even without work-related events in the picture.

While the Michigan courts have not followed suit (the most recent holdings have affirmed the “adverse employment action” requirement), some federal court decisions suggest a growing tendency to endorse a broader range of retaliation claims, even in favor of someone other than the employee responsible for the underlying inquiry.

In Crawford v. Metropolitan Government of Nashville County, the U.S. Court of Appeals for the Sixth Circuit (which covers Michigan) rejected the retaliation claim of an employee who had been fired soon after being interviewed during an internal sexual harassment investigation of her department's supervisor.  The plaintiff claimed that, although she had not herself instigated the investigation, her participation in the interview – during which she offered that the supervisor had sexually harassed both her and her co-workers – constituted “opposition” to an unlawful employment practice or “participation” in an investigation, both of which would be protected under Title VII’s retaliation provision.  The court disagreed, holding that the plaintiff’s mere cooperation in responding to her employer’s request for information did not rise to the level of “overt” and “active” opposition required by Title VII.  Nor was her participation in an internal investigation (absent a pending EEOC charge or other formal legal proceeding) viewed by the court as adequate.

We predict, however, that the Sixth Circuit’s Crawford decision will be reversed.  The U.S. Supreme Court has granted certiorari and will consider the case this term.  That Court will likely view the Sixth Circuit’s construction of Title VII’s “opposition” and “participation” protections as too narrow in view of the remedial purposes of the statute.

Somewhat ironically, a three-judge panel of the Sixth Circuit has itself already laid the groundwork for a much broader interpretation of Title VII’s anti-retaliation provision.  In a subsequent case, Thompson v. North American Stainless LP, the plaintiff alleged that he had been discharged in retaliation for an EEOC gender discrimination charge filed by his fiancée who worked for the same company.  Although there was no evidence that the plaintiff had himself assisted his fiancée in preparing her charge, and it was undisputed that he had not participated in the EEOC investigation, a two-judge majority of the Sixth Circuit held that because the plaintiff was so “closely related to or associated with” someone engaged in protected activity, it was consistent with the purpose of Title VII to allow the plaintiff to proceed with his own retaliation claim.  The majority further opined that, because a plaintiff asserting such a “third-party retaliation” claim would still need to prove a causal connection between the actual protected activity and the alleged retaliation, employers remained protected from frivolous “association” claims.

One Sixth Circuit Judge, Richard Griffin, argued in dissent that it is not the job of the courts to expand plain and unambiguous statutory language based upon individual judges’ perceptions of the intent of the legislature, and that the majority had both ignored precedent and made the Sixth Circuit the first federal appellate court to hold that Title VII allows an action for “third-party retaliation” on behalf of friends and family members who have not themselves engaged in any protected activity.  Doubtlessly influenced by Judge Griffin’s dissent, the Sixth Circuit then vacated the panel opinion and agreed to rehear the case en banc.

Two other federal appellate circuits have recently broadened Title VII’s anti-retaliation provision by allowing “third-party association” claims to proceed to trial.  This past February, in DeWitt v. Proctor Hospital, the Seventh Circuit allowed a plaintiff to proceed with an “association” claim in a case brought under the Americans with Disabilities Act.  The plaintiff’s husband suffered from prostate cancer for which he received expensive treatments covered by the hospital’s self-insured medical plan.  The plaintiff’s supervisor occasionally pulled her aside to inquire about her husband’s condition and asked whether they had considered less expensive treatment options.  In a staff meeting, the hospital informed employees that it would have to be “creative” in cutting costs.  When the plaintiff was fired three months later and inexplicably designated “not eligible for rehire,” she sued claiming that she was discriminatorily fired because of the expense associated with her husband’s disability.  Without much legal analysis, the Seventh Circuit reversed the trial court’s grant of summary judgment in favor of the hospital, finding that the plaintiff’s “fairly persuasive circumstantial evidence” was sufficient to allow her claim to proceed to trial.

More recently, in Holcomb v. Iona College, the Second Circuit held as “a matter of first impression” that a white college basketball coach who claimed to have been fired because he was married to an African-American woman could proceed with a Title VII race discrimination claim.  The court found too restrictive the holdings of other courts that "association" claims are not cognizable under the language of Title VII that prohibits discrimination against an individual “because of such individual’s race.”  The court reasoned that, “where an employee is subjected to adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee’s own race.”

Logic and common sense have taught us that adverse job action taken against an employee who has overtly raised an issue of discrimination requires special attention to make sure that no retaliatory motive can be inferred.  This will no longer be enough, in light of the fact that adverse action against related third parties, or possibly even retaliation by someone other than a management representative (shunning by co-workers, for instance), may be found sufficient to impose liability under the anti-retaliation provision of the civil rights laws.  This requires an additional level of concern – one that intuition does not necessarily alert us to.

Elizabeth P. Hardy

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