Does Title VII’s anti-retaliation provision prohibit an employer from retaliating against a third-party friend or family member of an employee who filed a workplace discrimination complaint and, if so, may the third-party victim sue the employer for retaliation?
Petitioner Eric L. Thompson, a metallurgical engineer formerly employed by Respondent North American Stainless (“Stainless”), sued Stainless under Section 704(a) of Title VII of the Civil Rights Act of 1964, alleging that Stainless fired him in retaliation for a gender discrimination complaint his then-fiancée (and now wife) Miriam Regalado filed against Stainless with the Equal Employment Opportunity Commission (“EEOC”). The Sixth Circuit found that Thompson did not have standing to sue Stainless and dismissed his complaint. Thompson argues that Title VII not only prohibits third-party retaliation but also gives third-party victims standing to sue, primarily because this furthers Title VII’s goal of eliminating discrimination and is consistent with the EEOC’s longstanding interpretation of Title VII. In opposition, Stainless argues that Section 704(a) does not give those third parties standing to sue the allegedly retaliating employer because permitting such an action would contradict congressional intent and unnecessarily curtail employers’ ability to manage their workforces.
Questions as Framed for the Court by the Parties
Section 704(a) of Title VII forbids an employer to retaliate against an employee because he or she engaged in certain protected activity. The questions presented are: (1) Does section 704(a) forbid an employer from retaliating for such activity by inflicting reprisals on a third party, such as a spouse, family member or fiancé, closely associated with the employee who engaged in such protected activity? (2) If so, may that prohibition be enforced in a civil action brought by the third party victim?
North American Stainless (“Stainless”) owns and operates a facility that manufactures stainless steel in Kentucky. See Thompson v. North American Stainless, LP, 567 F.3d 804, 806 (6th Cir. 2009). Eric Thompson worked for Stainless from February 1997 until March 2003. See Id. Miriam Regalado, Thompson’s now-wife, joined the company in 2000. See Id. Soon after, she and Thompson began dating and were engaged in 2003 when Stainless fired Thompson. See Id. Their relationship was “common knowledge” at Stainless. See Id.
In September 2002, Regalado filed a complaint against Stainless with the Equal Employment Opportunity Commission (“EEOC”) alleging gender discrimination in violation of Title VII of the Civil Rights Act of 1964. See Thompson, 567 F.3d at 806. Specifically, Regalado alleged that because of her gender Stainless demoted her twice and paid her less than similarly situated male employees. See Brief for Petitioner, Eric L. Thompson at 3. Stainless received notice of Regalado’s complaint in February 2003; three weeks later, Stainless fired Thompson for what it asserted were performance-based reasons. See Thompson, 567 F.3d at 806; Brief for Respondent, North American Stainless, LP at 1. Thompson then filed a complaint with the EEOC alleging that Stainless actually terminated him in retaliation for Regalado’s EEOC complaint. See Thompson, 567 F.3d at 806–07. He had not, however, personally engaged in any activities protected by Title VII, either on his own or on behalf of his then-fiancée. See Id.; Brief for Respondent at 1–2; Brief for Petitioner at 4.
The EEOC investigation into Thompson’s complaint found “reasonable cause to believe that [Stainless] violated Title VII.” See Thompson, 567 F.3d. at 806–07. After unsuccessful attempts at conciliation, the EEOC granted Thompson a right-to-sue letter and Thompson filed his Title VII retaliation claim against Stainless in the United States District Court for the Eastern District of Kentucky. See Id. The district court granted Stainless’ motion for summary judgment, finding that Thompson failed to state a claim of retaliation because he himself did not engage in any activities protected by Title VII. See Thompson v. North American Stainless, 435 F. Supp.2d 633, 639–40 (E.D. Ky. 2006). On appeal, the Sixth Circuit initially overturned the district court’s dismissal of the complaint, but it granted Stainless’ petition for rehearing en banc. See Thompson, 567 F.3d at 805. The en banc Sixth Circuit vacated its earlier opinion and affirmed the lower court’s dismissal of Thompson’s complaint. See Id. at 806, 816.
Thompson appealed to the Supreme Court, which granted certiorari to consider whether Title VII’s protection against retaliation extends to individuals like Thompson, who are third parties to a friend or family member’s discrimination complaint, and whether those individuals have standing to sue for such violations. See Question Presented.
Under Title VII, employees may sue their employers for workplace discrimination. See Thompson v. North American Stainless, LP, 567 F.3d at 806–07 (6th Cir. 2009). Additionally, Section 704(a) of Title VII, known as the “anti-retaliation provision,” forbids employers from “discriminat[ing] against any . . . [employee] because he . . . has made a charge . . . under this title.” See Id. Eric Thompson contends that he was fired because his then-fiancée filed a discrimination claim against North American Stainless, their mutual employer. See Brief for Petitioner, Eric L. Thompson at 3. He argues that this violates Title VII because Section 704(a) forbids employers from retaliating against Title VII claimants by inflicting punishment upon a closely related third party. See Id. at 9–10. Thompson further contends that if this third-party retaliation does occur, Title VII authorizes the third-party victim to sue the employer. See Id. at 35. In opposition, Stainless agrees that third-party reprisals are illegal under Title VII, but argues that the plain language of the anti-retaliation provision bars a third-party victim from bringing suit because he or she has not personally engaged in conduct protected under Title VII, such as filing a discrimination complaint. See Brief for Respondent, North American Stainless, LP at 11.
Do Third-Party Reprisals Violate Title VII’s Anti-Retaliation Clause?
Thompson argues that Title VII’s anti-retaliation provision prevents an employer from retaliating against an employee by firing or otherwise disciplining a third party. See Id. at 9–10. He contends that because Congress broadly worded the protections in this provision, it intended to forbid all forms of retaliation, including reprisals against third parties. See Id. 11–12. Further, Thompson points to other sections of Title VII that an employer violates only when the effects are on the “plaintiff’s own employment”; accordingly, Thompson argues that the lack of such a requirement in the anti-retaliation provision supports the contention that an employer violates it when the effects of retaliation are felt by a third party. See Id. 13–15.
Stainless, however, contends that the issue in this case is not, as Thompson alleges, whether employers can or cannot retaliate against third parties. See Brief for Respondent at 19–20. In fact, Stainless asserts that reprisals against third parties are actionable under the anti-retaliation provision, and that the person who engaged in the protected conduct—by filing a suit under Title VII—may bring a suit for such retaliation. See Id. Therefore, Stainless argues, this case is actually about who may sue the employer when that employer retaliates against a third party who did not engage in activity under Title VII. See Id. at 20.
May Third-Party Victims of Retaliation Bring Suit Against Their Employer Under Title VII?
Thompson contends that he may sue his employer, Stainless, because he is the third-party victim of retaliation against the protected party, his then-fiancée Regalado. See Brief for Petitioner at 35. Specifically, Thompson argues that as a third-party victim he is a “person aggrieved” under Title VII and, as such, has standing to sue. See Id. at 35–36. According to Thompson, use of this broad term evidences Congress’ intent to construe standing broadly, thus extending the right to sue beyond those “whose own rights have been violated” to all those against whom employers have retaliated. See Id. at 36. Even absent standing as a person aggrieved, Thompson contends that he may bring this action by asserting traditional third-party standing. See Id. at 21. Thompson argues that he satisfies the three requirements for third-party standing: (1) he suffered an injury in fact when he was fired; (2) he has a close relationship to the party whose rights were violated, Regalado, his now-wife; and (3) it would be nearly impossible for Regalado to obtain relief for the injury that Thompson suffered, as she does not have a “personal stake in the outcome” of Thompson’s claim. See Id. at 40–43.
In opposition, Stainless argues that both the purpose and the plain language of the anti-retaliation provision bar Thompson from bringing a claim as a third-party victim. See Brief for Respondent at 11, 14. The anti-retaliation provision, Stainless asserts, is intended to prevent harm to individuals who engage in protected activities under Title VII, such as filing a discrimination complaint with the Equal Employment Opportunity Commission. See Id. at 11–12. Therefore, because Thompson never engaged in such activity he is not a member of the class that the anti-retaliation provision intends to protect. See Id. Moreover, Stainless argues, according to Section 704(a)’s plain language, Thompson does not have a cause of action because Title VII litigants are protected based “upon their conduct, not upon their associations.” See Id. at 15–16. Accordingly, addressing Thompson’s specific claims of standing, Stainless contends that Thompson does not have standing under Title VII because “person aggrieved” does not include any injured party. See Id. at 31–32, 35. Rather, Stainless argues, if Congress had intended such a broad meaning, “injured” would replaced “aggrieved” or, as is done in the Fair Housing Act, Congress would have defined aggrieved to include “any injured person.” See Id. at 35–36. Moreover, Stainless contends, Thompson cannot obtain third party standing because the term “person aggrieved” encompasses prudential standing rules, which include “the general prohibition on a litigant’s raising another person’s legal rights.” See Id. at 34–37. Therefore, by adopting “person aggrieved,” Congress intended to preclude suits based on third-party standing. See Id. at 35–37.
Is the EEOC’s Interpretation of Title VII’s Anti-Retaliation Provision Entitled to Deference?
Thompson, and his supporting amici curiae, contend that the Supreme Court should give deference to EEOC interpretations and guidance regarding the anti-retaliation clause. See Brief for Petitioner at 21. Through guidance and adjudication, the EEOC has repeatedly stated that reprisals against a third party violate the anti-retaliation provision and that the victim of such retaliation may assert their own rights against the employer. See Id. at 21–23; Brief of Amici Curiae NELA, et al. in Support of Petitioner at 18–19. Thompson argues that the Court should recognize, as it has in the past, the importance of this “longstanding construction” by the EEOC, an agency with the information and experience to make such a judgment. See Brief of Petitioner at 23–24. Additionally, NELA contends that because the anti-retaliation provision is ambiguous, the Court should defer to the EEOC’s valid interpretation because it furthers Title VII’s anti-discrimination purpose. See Brief of NELA at 17.
In contrast, Stainless argues that EEOC interpretation of the anti-retaliation provision is not entitled to the Court’s deference. See Brief for Respondent at 48–49. The Court, Stainless contends, has already determined that interpretive guidelines, such as those that Thompson relies upon here, are merely entitled to respect, not deference. See Id. Furthermore, lower courts have already refused to rely upon these same interpretations. See Id. at 49. Ultimately, Stainless asserts, this case revolves around statutory construction, an area where the judiciary maintains the final authority. See Id. at 51–52.
Congress enacted Title VII to protect employees against workplace discrimination and employer retaliation following a discrimination complaint. See 42 U.S.C. § 2000e et seq. Eric Thompson argues that this retaliation protection extends to third parties associated with a complaint filer, giving them standing to sue if an employer retaliates against them for their friend or family member’s complaint. See Brief for Petitioner, Eric L. Thompson at 3. North American Stainless agrees that Title VII prohibits employers from retaliating against a complaining party’s friends or family, but argues that Title VII’s retaliation provision does not give those third parties standing to sue the allegedly retaliating employer. See Brief for Respondent, North American Stainless, LP at 1.
Discouraging Discrimination and Retaliation
The National Women’s Law Center (“NWLC”) argues that if the Court rules in favor of Stainless it will subvert Title VII’s goal of eliminating discrimination. See Brief of Amici Curiae National Women’s Law Center, et al. in Support of Petitioner at 4. Specifically, the NWLC argues, such a ruling could encourage employers to retaliate against the friends and family of an employee who makes a discrimination complaint because those third parties could not sue. See Id. at 15. The NWLC contends that this could force even more victims of workplace discrimination into silence, many of whom already stay silent for fear of retaliation against themselves or their loved ones. See Id. at 7–8, 11. Moreover, the NWLC claims, Title VII cases confirm the “not infrequent” occurrence of employer retaliation against a complaining employee’s partner or other close associate. See Id. at 11–15. If employees are discouraged from making discrimination complaints, the NWLC predicts, more instances of Title VII discrimination will pass unchecked. See Id. at 16. Perversely, the NWLC also argues, a ruling for Stainless could cause third parties to make unfounded discrimination complaints simply to protect their own employment against retaliation. See Id. at 8.
In contrast, the Equal Employment Advisory Council (“EEAC”) asserts that the NWLC’s characterization of employer retaliation against third parties is a “gross exaggeration.” See Brief of Amici Curiae Equal Employment Advisory Council, et al. in Support of Respondent at 19. The real problem here, the EEAC argues, is that a ruling against Stainless will actually harm the workplace because fear of frivolous lawsuits will make it unnecessarily difficult for employers to make disciplinary decisions. See Id. at 21. This is because an employee who files a complaint has nearly “automatic job protection” under Title VII—accordingly, Stainless argues, if every employee asserts a third-party relationship with a complainant, the employer may be unable to take justified disciplinary action against any employee. See Brief for Respondent at 24–26. Moreover, a ruling for Thompson could give employees reason to falsify both discrimination claims and relationships in order to protect their jobs. See id. at 26–27.
Confusing Employees, Employers, and Courts
If the Court rules for Stainless, the National Employment Lawyers Association (“NELA”) argues, complaining employees and third-party retaliation victims are likely to face significant confusion about who has standing to sue under Title VII—an inappropriate result, NELA argues, because Title VII enforcement should be employee-driven. See Brief of Amici Curiae National Employment Lawyers Association, et al. in Support of Petitioner at 25–26. Consequently, the United States argues, a ruling against Thompson would create a “trap for unrepresented litigants” who assume that the third-party victim of retaliation—who has the most to gain and the most to lose—is in the best position to sue the employer. See Brief of Amicus Curiae the United States in Support of Petitioner at 26–27. Accordingly, if a third-party retaliation victim cannot bring his own suit, then he is totally dependent on the person who filed the original complaint. See id. at 25–27. The United States argues that this is an untenable result because the interests of the two individuals will not always align and will possibly leave the third-party victim without a remedy. See id. at 26–27. Such a result is also unnecessary, the United States argues, because any problems courts or employers have in classifying employee relationships will be remedied by the fact-specific inquiry a court must always conduct in analyzing employer conduct under Title VII retaliation claims. See id. at 13–14.
In contrast, the EEAC argues that if the Court rules for Thompson, employers and courts will actually suffer the greatest confusion—much greater than in Title VII retaliation suits brought by a non-third party. See Brief of EEAC at 20–21. Specifically, the EEAC claims that employers will have to inquire or guess about employee relationships before taking any disciplinary actions out of fear that the person they are disciplining is closely associated with a complaining employee—thus significantly increasing employers’ legal risk. See Id.; Brief for Respondent at 25–26. Courts, Stainless asserts, will similarly be forced to guess which relationships qualify for Title VII’s “automatic protection” and will be forced to conduct “mini-trials” to determine relationships before a claim could move forward. See Brief for Respondent at 25. Accordingly, the EEAC argues, a ruling for Stainless would create an unworkable amount of uncertainty and confusion for employers and courts adjudicating Title VII retaliation claims. See Brief of EEAC at 8.
Congress enacted Title VII of the 1964 Civil Rights Act to protect employees against workplace discrimination and against employer retaliation stemming from a discrimination complaint. Eric Thompson argues that Title VII not only prohibits third-party retaliation but also gives those third-party victims standing to sue, primarily because this furthers Title VII’s goal of eliminating discrimination and is consistent with the EEOC’s longstanding interpretation of Title VII. In opposition, North American Stainless agrees that Title VII prohibits employers from retaliating against a third party, but argues that Section 704(a) does not give those third parties standing to sue the allegedly retaliating employer because that would contradict congressional intent and unnecessarily curtail employers’ ability to manage their workforces. This case will have an impact upon employees’ incentives to file discrimination claims as well as the frequency of employers’ retaliation on third-parties.
The authors would like to thank former Supreme Court Reporter of Decisions Frank Wagner for his assistance in editing this preview.
· U.S. Equal Employment Opportunity Commission: Retaliation
· LII: Employment Discrimination
· Ohio Employer’s Law Blog, Jon Hyman: Following Up on Thompson v. North American Stainless – The Tea Leaves of Associated Retaliation (June 30, 2010)