The Supreme Court will revisit the issue of retaliation in Thompson v. North American Stainless, LP, 567 F.3d 804 (6th Cir. Ky. 2009), where it will determine whether Title VII prevents an employer from firing a closely-associated employee in response to a protected employee's actions. In this Analysis, Darrell VanDeusen and Adam T. Simons explain the 6th Circuit's decision, discuss the parties' certiorari briefs and provide an analysis of the practical effect of the Court's decision. They write:
Retaliation has been on the mind of the Supreme Court quite a bit over the past few years. It started with the Court's 2006 decision in Burlington N. & Santa Fe Ry. Co. v. White [548 U.S. 53 (U.S. 2006)], which adopted the "materially adverse" standard. It continued with CBOCS West, Inc. v. Humphries [553 U.S. 442 (U.S. 2008)], and the decision that Section 1981 of the Civil Rights Act of 1866 encompasses retaliation claims as well as claims of race discrimination. In Gomez-Perez v. Potter [553 U.S. 474 (U.S. 2008)], issued the same day as Humphries, the Court held that retaliation claims are viable for federal employees under the Age Discrimination in Employment Act (ADEA), despite the absence of any language suggesting such protection. Then, in Crawford v. Metropolitan Government of Nashville [129 S. Ct. 846 (U.S. 2009)], the Court made it clear that employees who raise concerns about discrimination or harassment in an internal investigation are protected from retaliation under Title VII's anti-retaliation clause.
The Court will revisit the issue this coming term in Thompson v. North American Stainless, LP, where it will determine whether Title VII prevents an employer from firing a closely-associated employee in response to a protected employee's actions. If such action is prohibited, the Court must also address whether the closely-associate employee may sue the employer for violating Title VII. The Sixth Circuit held that an employer violates Title VII by retaliating against a third party, but also held that the third party does not have a cause of action against the employer for the unlawful retaliation. Instead, only a person who engaged in protected activity may bring a suit.
Consider the following hypothetical: Zeke and his sister Zelda work for XYZ Corp. A supervisor fails to promote Zelda, and tells her that he made the decision because she is a woman -- clear and unambiguous sex discrimination. Zelda files a charge with the Equal Employment Opportunity Commission (EEOC), claiming that XYZ Corp. violated Title VII. Zeke has done nothing and said nothing about this situation. But, learning that Zelda filed an EEOC charge -- and precisely because she did so -- XYZ Corp. retaliates by firing Zeke. Has XYZ Corp. violated Title VII by firing Zeke? If so, does Zeke have the right to sue XYZ Corp. for violating the anti-retaliation provisions of Title VII? Does the result change if Zeke and Zelda are spouses? Significant others? Cousins? Really good friends?
This law school exam question mirrors the issues presented to the Court in Thompson. On June 29, 2010, the Court granted certiorari to determine first, whether Title VII prohibits an employer from dismissing a closely-associated employee in response to a protected employee's actions and, second, if such action is prohibited, whether the closely-associated employee may sue the employer for violating Title VII. The Sixth Circuit held that an employer does violate Title VII by retaliating against a third party, but also held that the third party does not have a cause of action against the employer for the unlawful retaliation. Instead, only a person who engaged in protected activity may bring a suit.
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