Thompson v. No. Amer. Stainless, No. 07-5040 (6th Cir. June 5, 2009)

By Paul Mollica

Victims of second-hand retaliation — where employers punish people close to the employee who engaged in protected activity under Title VII — briefly enjoyed a direct cause of action against the employer in the Sixth Circuit. No longer, though: the en banc Sixth Circuit votes it out of existence 10-6.

Thompson v. No. Amer. Stainless, No. 07-5040 (6th Cir. June 5, 2009):  There weeks after a female employee filed a gender discrimination charge against the employer, the employer fires her fiancee.  I doubt anyone could reasonably argue that this is not an adverse action as to the female employee, as firing a fiancee or family member would serve to deter reasonable people from filing Title VII complaints (and majority opinion seems to agree, here, that the employee who engaged in the protected activity would be protected, maj. op. at 17 n.10.). 

Does the fiancee himself have a cause of action for Title VII retaliation, insofar as he personally was not engaged in protected activity?  Has the employer, in other words (assuming the truth of the allegations), found itself a nice loophole?  The original panel decision (blogged here 4/1/08) held, 2-1, that a direct cause of action existed.  That decision was vacated for re-hearing by the entire court.

The court now holds that under the literal terms of section 703(a) of Title VII, only the “employee” engaged in protected activities him- or herself has a claim for Title VII retaliation.  Speaketh the majority, in an opinion signed by Judge Griffin (the original dissenter in the panel decision):

“By application of the plain language of the statute, Thompson is not included in the class of persons for whom 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. Nonetheless, with the support of the EEOC, he argues that the statute should be construed to include claimants who are ‘closely related [to] or associated [with]’ a person who has engaged in protected activity. Thompson and the EEOC offer various reasons why we should disregard the text of the statute in favor of their public policy preferences. The primary contention is that a ‘narrow’ interpretation of § 704(a) would create an ‘absurd’ result. Further, they argue that we should defer to the EEOC’s interpretation of the statute. These assertions are dependent upon the premise that the statutory language is ambiguous. It is not.”

One can argue ad nauseum about what the correct standard ought to be for construing the language of federal civil rights acts. (The several dissents hash over this point with relish.)  Note that our Supreme Court has, in recent years, implied an otherwise non-expressed cause of action for retaliation under Title XI, section 1981 and section 633a of the ADEA (and the majority notes these cases in passing at the close of the opinion, in a footnote).  Likewise, the Supreme Court in Robinson v. Shell a decade ago defined “employee” to include former employees, to avoid the absurd result that the employer could otherwise punish the employee after firing him with impunity.  But an appeal to broad construction will not aid the employee if a judge sees the statute as “narrow” already (see page 3, “[when Congress enacted the Civil Rights Act of 1964, it created a new and limited cause of action for retaliation in the employment setting”).

But the more salient issue — for me — is deference:  should the court have deferred to the EEOC’s interpretation of this section?  The EEOC’s Compliance Manual interprets this section as protecting third parties. There is a total absence of any analysis of the question by the majority, and even the dissenters make only a footnote point of it (p.27, n.4).  This is strange, as the Supreme Court does pay attention to the EEOC’s interpretations of the statutes it enforces, even if it does not grant them strict Chevron deference. Fed. Express Corp. v. Holowecki, 128 S. Ct. 1147 (2008) (explaining that EEOC compliance manuals “reflect ‘a body of experience and informed judgment to which courts and litigants may properly resort for guidance'” (quoting Bragdon v. Abbott, 524 U.S. 624 (1998)). 

This presents a nice question for the Supreme Court, which has had a steady diet of retaliation cases on its docket the last couple of terms.