Supreme Court to Review Viability of Third Party Retaliation Claims Under Title VII
The Supreme Court yesterday granted cert. to review the decision of the 6th Circuit in Thompson v. North American Stainless LP, 567 F.3d 804 (6th Cir. 2009) (en banc) which held that a fired employee lacked standing to bring a Title VII retaliation claim as the mere fiance (later husband) of a woman who had brought a discrimination charge of her own. The 10-6 en banc holding of the 6th Circuit requires a plaintiff to have engaged in protected activity by opposing discrimination in his own right or as an actual party to the case of another. Close relational status alone, the 6th Circuit held, is not enough. Reviewing decisions of other circuits holding likewise, the en banc court stated:
In sum, no circuit court of appeals has held that Title VII creates a claim for third-party retaliation in circumstances where the plaintiff has not engaged personally in any protected activity. Although plaintiff and the EEOC argue that the language of § 704(a) is ambiguous and that enforcement of the statutory text will lead to absurd results, we disagree, as do the Third, Fifth, and Eighth Circuits, which have soundly rejected such a cause of action. . . . [W]e affirm the judgment of the district court and hold that § 704(a) of Title VII does not create a cause of action for third-party retaliation for persons who have not personally engaged in protected activity.
An interesting aspect of this case is the fact that the Solicitor General, whose recommendations more often than not are followed, had urged the Supreme Court not to take the case, arguing that there was no split in the circuits and that this decision did not inhibit people who actively engage in protected activity from pursuing third-party claims.
While this case will not be briefed or argued until the next term begins in October, it is interesting to note that the outcome is anything but clear. Despite many assertions that the Supreme Court has been unfriendly to individuals, it has been willing to take up attenuated retaliation claims such as Burlington Northern & Sante Fe Railway Co. v. White, a 2006 decision imposing Title VII liability on an employer who acts to dissuade a reasonable employee from bringing or aiding a complaint; and Crawford v. Metro. Gov't of Nashville and Davidson County, a 2009 decision reversing the 6th Circuit and holding that a female employee fired after she stated in an internal investigation that she had been sexually harassed had standing to bring a retaliation claim even though she did not initiate the investigation or even file a sexual harassment complaint.
Given the Court's recent history, the Thompson case bears watching closely.
