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In Thompson v. North American Stainless, an en banc opinion of the U.S. Court of Appeals for the Sixth Circuit, the court reversed its earlier position allowing “third-party retaliation” claims and held that the plain text of Title VII permits only those who have personally engaged in “protected activity” to bring such claims.

Thompson, an employee of North American Stainless, was fired three weeks after his fiancée, a co-worker, filed an EEOC complaint. Although the factual record established that Thompson had helped his fiancée file her discrimination charge and had participated in an interview with the EEOC, he did not assert in the litigation that he had engaged in any statutorily protected activity himself. Instead, he alleged that his relationship with his fiancée was the “sole motivating factor in his termination” and argued that Title VII should be construed to include claimants who are “closely related [to] or associated [with] a person who has engaged in protected activity.” Relying on the fact that Thompson never claimed that his own actions constituted protected activity (even though they may well have qualified as such), the Sixth Circuit found that the plain language of the statute barred his claim.

In holding that Title VII’s plain language strictly limits the class of employees who have standing to bring retaliation claims, the Sixth Circuit joined the Third, Fifth, and Eighth Circuits in barring third-party retaliation claims. The Fourth, Seventh, and Eleventh Circuits, on the other hand, have looked beyond the literal wording of the statute and have held that its broad remedial purpose compels the protection of those who have a close relationship or association with a complaining party (e.g., family members, close friends, romantic interests) irrespective of whether they have engaged in protected activity on their own.

The split in the federal appellate circuits evidenced here is reminiscent of the controversy in Crawford v. Metropolitan Government of Nashville County that was ultimately settled by the U.S. Supreme Court. In Crawford, the Sixth Circuit rejected the retaliation claim of an employee who had been fired soon after being interviewed during an internal sexual harassment investigation. Although the plaintiff had not herself filed a complaint or instigated the investigation, she claimed that her participation in the investigation — during which she reported that the supervisor under investigation had sexually harassed her as well as others — constituted “opposition” to an unlawful employment practice or “participation” in an investigation, both of which were protected under Title VII’s anti-retaliation provision. Adopting a narrow construction of the statute’s “opposition” and “participation” protections based on a plain meaning approach, the Sixth Circuit held that a plaintiff ’s mere cooperation with an employer’s request for information does not rise to the level of “overt” and “active” opposition required by Title VII. As we predicted in our last Insight, though, the U.S. Supreme Court reversed the Sixth Circuit and enforced a broad reading of “oppose” consistent with the remedial purposes of Title VII.

Given the active interest the Supreme Court has recently displayed in retaliation cases, and the frequency with which it has upheld retaliation claims under Title VII and other statutes, it would not be surprising if it were to step in again to settle the dispute in the federal appellate circuits over the issue of third-party retaliation claims. Regardless, however, Michigan employers (who are covered by the Sixth Circuit) should not assume that they are insulated from the type of third-party “association” claim that was at issue in Thompson. After all, based on the text of Section 704(a) of Title VII, a plaintiff need only show that he or she has “opposed” any practice made unlawful or has “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing” to be included in the class of persons who can sue for retaliation. That is not a difficult standard to satisfy. The plaintiff in Thompson would presumably have been found to have engaged in protected activity had he chosen to characterize his actions in that fashion.

Elizabeth Hardy