By David L. Hudson Jr., a First Amendment Scholar at the Freedom Forum First Amendment Center. Hudson writes regularly on free-speech and employment discrimination cases.
In recent years the U.S. Supreme Court has proved a fair and friendly forum for those asserting claims of retaliation under discrimination statutes such as Title VII of the Civil Rights Act of 1964. In Burlington Northern v. White (2006), the Court explained that an employer can retaliate within the meaning of Title VII with actions short of terminations and other ultimate employment actions. In Crawford v. Metro Gov't of Nashville (2009), the Court ruled that Title VII's opposition clause extended to an employee who was terminated after she participated in an employee's internal investigation.
Both Burlington Northern and Crawford arose out of the Sixth Circuit. Some court-watchers say it is likely that the Supreme Court will pluck another Sixth Circuit Title VII retaliation case from its docket. The Court may hear Thompson v. North American Stainless (09-291) to determine whether Title VII's anti-retaliation provision protects an employee who alleged he was terminated in retaliation for his then-fiancée's (now his wife) EEOC claim alleging sex discrimination.
The facts as framed by Thompson certainly reek of retaliation in the layman's sense of the word. Eric Thompson worked for more than five years as an engineer for North American Stainless. Thompson's fiancée, Miriam Regalado, filed an EEOC charge against North American Stainless for gender discrimination. The EEOC notified the company of the discrimination charge on March 7, 2003. Three weeks later, the company terminated Thompson, claiming it was for performance-based reasons. Query - if it really was for performance-based reasons why did the company base its decision only a few weeks after his fiancée's discrimination claim.
Thompson alleged unlawful retaliation under Title VII. The company countered that he was not retaliated against within the meaning of Title VII because he (Thompson) did not actively oppose any unlawful employment practice or participate in any discrimination proceeding. The company contended that Thompson failed to allege that he personally engaged in any protected activity.
A federal district court accepted the company's argument and ruled in its favor. In 2008, a divided three-judge panel of the 6th Circuit reversed 2-1, ruling that the district court ignored Title VII's broad remedial purposes and the EEOC's Compliance Manual, which recognized such claims. The company successfully petitioned for en banc review, as the full Sixth Circuit ruled 10-6 against Thompson and in favor of the company. According to the en banc majority, "the plain text" of the statute disallowed such third-party retaliation claims.
If the Supreme Court takes the case, the question becomes whether it will reject the Sixth Circuit's reasoning as it did in Crawford when it referred to the appeals court's crabbed interpretation of Title VII's opposition clause as "freakish."
Certainly, the broad remedial purpose of Title VII's anti-retaliation provision seemingly should protect a person who is terminated because his fiancée or wife filed a discrimination claim. Employees wouldn't want to avail themselves of Title VII or other employment discrimination statutes if they knew employers could fire their family members with impunity.
Sometimes, courts do go beyond the most literal interpretation of a discrimination statute, as it has in the interracial association cases where a person alleges they have suffered an adverse employment action because of an interracial relationship or biracial child (unfortunately, these things still happen to people in the workplace).
One can only hope the Court will continue its protective reading of Title VII's anti-retaliation provision. If the Court were to provide no help, then perhaps Congress can help. Otherwise, employees' counsel must ensure that their clients have evidence of active opposition or participation in order to ensure that they fall under the protective umbrella of Title VII's anti-retaliation provision.