Reeling in Retaliation

The pool of potential retaliation claimants under Title VII of the Civil Rights Act of 1964 just got smaller in many jurisdictions.  The Sixth Circuit Court of Appeals joins the Third, Fifth and Eight Circuits in its recent holding that a claimant must personally engage in protected activity, such as opposing a practice, making a charge or assisting or participating in an investigation, in order to bring a retaliation claim against its employer under Title VII of the Civil Rights Act of 1964.   The recent wave of decisions creates uncertainty as to how the Ninth Circuit may rule in such a case.

In Thompson v. North American Stainless, 2009 WL 1563443 (C.A.6 (Ky.), the court held that Title VII does not provide a cause of action for third-party retaliation for plaintiffs who have not personally engaged in protected activity.  From 1997 to 2003, Thompson worked as an engineer for North American Stainless.  He met his future wife, Miriam Regalado, when she came to work for North American Stainless in 2000. The status of their relationship was common knowledge throughout the company.

In 2002, Regalado filed a claim with the Equal Employment Opportunity Commission (EEOC) asserting that she experienced gender based discrimination by her North American Stainless supervisors.  In 2003, North American Stainless was notified of Regalado’s claims by the EEOC.  Three weeks later, Thompson, who was then engaged to Regalado, was terminated by North American Stainless.   Thompson claimed that North American Stainless violated Title VII because he was terminated as retaliation for Regalado’s filing of a charge with the EEOC.  North American Stainless argued that its actions were due to Thompson’s performance based problems and had nothing to do with his fiancé’s claim.

Thompson based his claim on §704(a) of Title VII which provides, in relevant part, a limited cause of action for retaliation: “It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment…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.”  (Title VII of the Civil Rights Act of 1964, § 704(a), 42 U.S.C. § 2000e-3(a) (emphasis added).)

Thompson did not assert that he engaged in any protected activity in connection with Regalado’s claim.  Rather, he argued that he was terminated based solely on his relationship with Regalado and that Title VII provides for claims by those who are “’closely related [to] or associated [with]’ a person who has engaged in protected activity.”  However, the court disagreed, explaining “by application of the plain language of the statute, Thompson is not included in the class of persons for who Congress created a retaliation cause of action because he personally did not oppose an unlawful employment practice, make a charge, testify, assist, or participate in an investigation.”  

The court distinguished a recent United States Supreme Court case, Crawford v. Metro. Gov’t of Nashville and Davidson County, Tenn., -- U.S.--, 129 S. Ct 846 (2009), where an employee was permitted to bring a retaliation claim under § 704(a) because her involuntary testimony in an internal sexual harassment investigation constituted “opposition.”  The employee did not claim she was engaging in protected activity by filing a complaint prior to her interview or by taking any action after the investigation was complete but before her termination.  However, Crawford’s statements to investigators, even though involuntary, were held to be “opposition” within the statute.  The Sixth Circuit court explained that Crawford does not apply to Thompson’s case because plaintiff “failed to raise a genuine issue of material fact that he engaged in protect activity by personally ‘opposing’ a discriminatory practice under Title VII’s anti-retaliation provision.”

The court also distinguished Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006), where the phrase “discriminate against” as used in Title VII was held to include retaliatory acts that are not directly related to employment or occur outside of the workplace.  The Burlington court did not limit the scope of retaliatory acts to the workplace because “’no such limiting words’ appear in the statute and thus [it] declined to incorporate restrictions not expressly set forth in the plain language of the text.” However, the Thompson court noted that § 704(a) does specifically address who may bring a claim because it “explicitly identifies those individuals who are protected-employees who ‘opposed any practice made an unlawful employment practice’ or who ‘made a charge, testified, assisted or participated in any manner in an investigation, proceeding, or hearing’ under Title VII.” 

Further, the fact that Congress specifically required that the claimant had performed an affirmative action to be a protected-person under the anti-retaliation provision by its word choice (“opposed”, “testified”, “made a charge”, “participated”, “assisted”) was also persuasive to the Thompson court.  In the court’s view, Congress would have included words of association had it intended to protect individuals based on their association with a complainant. Additionally, the court was unconvinced by Thompson’s argument that a literal reading of the statute would create “absurd” results because such a conclusion would drastically limit access to Title VII’s remedies.  The court declined to consider this argument because it deemed the statute unambiguous.   Instead, the court reasoned that its decision fulfills the goal of the retaliation statute by protecting the persons retaliated against, not those who are incidentally hurt by retaliation.  For example, the court noted that Thompson’s wife could have filed a proper retaliation claim under the statute because the termination of plaintiff could have potentially been determined to be an “adverse employment action” under Burlington Northern. 

However, it is unclear if the Ninth Circuit will adopt the reasoning of the Sixth, Third, Fifth and Eight Circuits that a plain reading of Title VII does not provide for retaliation by association claims. It is also unclear whether a court would allow retaliation by association claims under the California Fair Employment and Housing Act (FEHA). 

It is a violation of the anti-retaliation provision of FEHA “[f]or any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.” (Gov. Code § 12940(h) (emphasis added).)  Similar to § 704(a) of Title VII, a literal reading of FEHA’s anti-retaliation provision implies that a claimant must personally take action to be entitled to protection, thus, preventing retaliation by association claims.

In contrast, FEHA’s discrimination provisions clearly provide for discrimination by association claims.  FEHA protects individuals who are discriminated against on the basis of “’[r]ace, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation’ [including a person who is perceived to have] any of those characteristics or [a] person [that] is associated with a person who has, or is perceived to have, any of those characteristics.” (Gov. Code 12926(m).)

The recent circuit decisions may be setting the stage for yet another situation where California law differs from Federal law.  The Ninth Circuit may possibly employ similar reasoning when analyzing the meaning of the term “oppose” as the California Supreme Court  did in the landmark case Yanowitz v. L’Oreal, 36 Cal. 4^th 1028 (2005).   There the Court held that Yanowitz’s refusal to follow her boss’ directive to fire an employee he considered unattractive constituted opposition to sexual harassment under FEHA.  The Yanowitz case opened the door to the idea that opposition under the anti-retaliation of FEHA can be satisfied by non-action.  Interestingly, the Thompson dissent highlighted a similar rationale that was noted by the Crawford court.  “’Oppose’ goes beyond ‘active, consistent’ behavior in ordinary discourse, where we naturally use the word to speak of someone who has taken no action at all to advance the position beyond disclosing it.  Countless people were known to ‘oppose’ slavery before Emancipation, or are said to ‘oppose’ capital punishment today, without writing public letters, taking to the streets, or resisting the government.”

The Ninth Circuit may also consider Equal Opportunity Commission Guidelines published in its Compliance Manual. A section titled “Person Claiming Retaliation Need Not Be the Person Who Engaged in Opposition” seems to support retaliation by association claims. It states that “Title VII, the ADEA, the EPA, and the ADA prohibit retaliation against someone so closely related to or associated with the person exercising his or her statutory rights that it would discourage that person from pursuing those rights.  For example, it is unlawful to retaliate against an employee because his son, who is also an employee, opposed allegedly unlawful employment practices.  Retaliation against a close relative of an individual who opposed discrimination can be challenged by both the individual who engaged in protected activity and the relative, where both are employees.” (EEOC Compliance Manual, § 8-II(C)(3), (May 1998).)

Allowing retaliation by association claims could open the proverbial floodgates of litigation.  One of the most compelling problems behind these types of claims is where courts would draw the line regarding sufficient association.  For example, marital or parent-child relationships are connections that create an “association”.  However, the waters become murky when considering if a casual dating relationship or friendship create enough of an association to warrant rights under FEHA or Title VII. 

While the Yanowitz case provides an opening for the Ninth Circuit to uphold claims for retaliation by association, the Ninth Circuit could follow the same line of reasoning as the Thompson court.   The Legislature’s inclusion of a claim of discrimination by association but not a claim of retaliation by association under the FEHA is definitive of legislative intent and supports an argument that the reasoning of the Thompson court should apply rather than a broader interpretation.  However, as this is an ever evolving area of law, practitioners should exercise caution in advising employers and employees in matters surrounding potential retaliation by association charges.

Melanie Poturica is the managing partner of Liebert Cassidy Whitmore and Lauren Liebes is an associate in the firm's Los Angeles office. Both represent public entities in labor and employment law matters, as well as public and private schools and colleges in education law matters.