by Darrell VanDeusen and Adam T. Simons (Mr. Simons is an associate at Kollman & Saucier, having recently completed a clerkship on the Maryland Court of Special Appeals)
The 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.
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
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.
. . . .
Petition for Writ of Certiorari
On September 3, 2009,
Thompson filed a Petition for a Writ of Certiorari. In that Petition, he
phrased the questions presented as follows:
704(a) of Title VII forbids an employer from retaliating against an
employee because he or she engaged in certain protected activity. The questions
(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
(2) If so, may that prohibition be enforced in a civil action brought
by the third party victim?
This case is intriguing for
a number of reasons, but particularly intriguing is that the parties have
opposing views as to the actual issue before the Court. Clearly, Thompson
asserted in his Petition that the court must determine both whether the actions
taken by North American are illegal and, if so, whether he can bring a suit to
redress the retaliation. By contrast, both North American and the United States
considered the illegality of such actions to be a settled issue, and that the
real issue before the court is who may bring suit to challenge the employer's
allegedly retaliatory action. Both agree that retaliation against a third party
is illegal; thus, the only issue is who can sue. In all likelihood, however,
the Court will summarily address the issue of whether the retaliation is
unlawful and focus mainly on the second issue.
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