Recall in Thompson v. North Am. Stainless, the 6th Circuit recognized a claim for associational retaliation, and held that "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."
At the time, I questioned the practical application of the Thompson decision by asking, "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?
Last month, the United States District Court for the District of Oregon, in EEOC v. Qwest Corporation, gave us some clarity on how close is close enough to support an associational discrimination claim. In that court's view, the law requires something more than just a friendship:
To maintain a claim of discrimination or harassment based on her association with a black person, plaintiff must show the existence of an association. The law requires something more than mere work-related friendship. There must be a significant connection between the plaintiff and the non-white person.
While I was writing tongue-in-cheek when I asked whether carpool buddies would be able to bring an associational retaliation claim under Thompson, it is refreshing to see a court take a practical look at this type of case and reject an associational claim made by a friend. As we try to figure out the limits of Thompson, these types of decisions are certainly worth following.
[Hat tip: Manpower Employment Blawg]