6th Circuit recognizes claim for associational retaliation

The 6th Circuit continues to broaden the scope of retaliation claims, and in the process make it more and more difficult for employers in Ohio, Michigan, Kentucky, and Tennessee to manage against these claims. In Hawkins v. Anheuser-Busch, the 6th Circuit recognized a claim against an employer for retaliatory acts committed not by a manager or supervisor, but by a co-worker. Yesterday, the Court continued its expansion of retaliation liability and recognized liability for "associational retaliation."
Section 704(a) of Title VII of the Civil Rights Act of 1964 prevents retaliation by employers for two types of activity, opposition and participation:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees ... 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.

On its face, it seems clear that the anti-retaliation provision is limited to an employee who himself or herself opposes an unlawful employment practice, made a charge, or participated in a investigation, proceeding or hearing regarding a charge. Yet, in Thompson v. North American Stainless, decided this week by the 6th Circuit, the Court has held that the same anti-retaliation provision also protects a related or associated third party from retaliation.
Eric Thompson was engaged to Miriam Regalado, another North American Stainless employee. Three weeks after Regalado filed a sex discrimination charge with the EEOC, North American Stainless terminated Thompson for alleged performance reasons. The 6th Circuit reversed the trial court's dismissal of the retaliation claim, holding:

Title VII prohibit[s] employers from taking retaliatory action against employees not directly involved in protected activity, but who are so closely related to or associated with those who are directly involved, that it is clear that the protected activity motivated the employer's action. (emphasis added).

The Court found that even though the plain language of the statute would prohibit such a claim, not allowing the claim would frustrate the statute's purpose -- prohibiting conduct that would dissuade reasonable workers from engaging in protected activity. The Court also defended itself from possible criticism that it was taking too broad a reading of the statute and opening the door to a flood of claims:

Other courts have expressed concerns as to whether this decision will result in a flood of suits from relatives and associates of those who file EEOC charges.... The requirement of a prima facie case in general, and a causal link specifically protect employers from defending against meritless suits. Of greater concern to the court would be the result of a contrary ruling. That is, permitting employers to retaliate with impunity for opposition to unlawful practices, filing EEOC charges or otherwise participating in such efforts, as long as that retaliation is only directed at family members and friends, and not the individual conducting the protected activity.

In becoming the first circuit court to recognize a claim for associational retaliation, the court rewrote Title VII's anti-retaliation for public policy reasons. As the dissent further explained:

It was Congress’s prerogative to create – or refrain from creating – a federal cause of action for civil rights retaliation. Congress likewise was entitled to mold the scope of such legislation, making the boundaries of coverage either expansive or limited in nature. In enacting § 704(a), Congress chose the latter. The text of § 704(a) is plain and unambiguous in its protection of a limited class of persons who are afforded the right to sue for retaliation. To be included in this class, the plaintiff must show that his employer discriminated against him "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).
By application of the plain language of the statute, plaintiff Eric L. Thompson is clearly not included in the class of persons for whom Congress created a retaliation cause of action because Thompson, himself, did not oppose an unlawful employment practice, or make a charge, testify, assist, or participate in an investigation....
In essence, plaintiff and the EEOC request that we become the first circuit court to hold that Title VII creates a cause of action for third-party retaliation on behalf of friends and family members who have not engaged in protected activity. The majority has accepted this dubious invitation. In doing so, the majority rewrites the law.

Separate and apart from whether one agrees or disagrees with the Court's judicial activism, its holding creates genuine logistical problems for employers. If Title VII protects those "who are so closely related to or associated" with employees who engage in protected activity, it simply begs the question, how close is close enough? In Thompson, the relationship was a fiancee. It is safe to assume liability will also extend to action taken against spouses. What about boyfriends and girlfriends? How long do you have to date to be protected from retaliation?
The same protection also will probably extend to parents and children. What about siblings? Grandparents? Cousins? 3rd cousins twice removed? In-laws? Friends? Carpoolers? The people you share your lunch table with? The person you sat next to in 3rd grade? How close is close enough for an employer to intend for its actions to punish the exercise of protected activity? Do employers now have to ask for family trees and class pictures as part of the orientation process?
These questions, none of which the Thompson court answers, could hamstring employers from making any employment decisions for fear of doing something against someone who has some relationship to someone else who complained about something last October. The implications of this case have the potential to reach that level of silliness. The best course of action is still to make legitimate personnel decisions for bona fide business reasons and let the chips fall where they may. Fear of being sued will freeze your workforce, and bad employees will continue to get a free pass and remain employed. No company wants to get sued, but sometimes you have to take that risk to rid yourself of a bad worker. The Thompson case just makes it that much more likely that if you take action against an employee, you may have to defend that decision in court.