Joanna L. Grossman

Protection Against Workplace Retaliation: The Supreme Court Hears Argument in Thompson v. North American Stainless, Part One in a Two-Part Series

By JOANNA L. GROSSMAN and DEBORAH L. BRAKE
Monday, December 6, 2010

This week, the U.S. Supreme Court will hear oral argument in Thompson v. North American Stainless, the latest in a series of cases that have come before the Court that relate to the scope of protection against workplace retaliation under federal anti-discrimination laws.

This case is about so-called third-party retaliation: Does Title VII forbid an employer from retaliating against a worker who complains of discrimination by inflicting reprisals on a third party (such as a spouse, family member, or fiancé) who is closely associated with the employee? If so, can the third-party victim sue to enforce the anti-retaliation rights?

In this two-part series of columns, we will consider the question that is raised by Thompson, while placing this inquiry against the backdrop of the holdings and reasoning of the Supreme Court's prior retaliation cases.

The Facts in Thompsonv. North American Stainless

Here are the facts of the case before the Court:Beginning in 1997, Eric Thompson worked as a metallurgical engineer for North American Stainless, the operator of a stainless-steel-manufacturing facility in Kentucky. In 2000, Miriam Regalado joined the company, and she and Thompson began dating. Subsequently, they got engaged. In 2003, during their engagement, Thompson was terminated. (He and Regalado are now married).

According to Thompson's complaint, his firing was meant to punish him and Regalado for something Regalado had done: In 2002, Regalado had filed an EEOC charge against the company, alleging sex discrimination. (Filing an EECO charge is a necessary first step before filing a discrimination lawsuit under Title VII.) In February 2003, the company learned of the charge. Three weeks later, Thompson was fired.

Thompson then filed his own EEOC charge, alleging illegal retaliation. The EEOC found reasonable cause to believe that his charge was well-founded, but was unsuccessful in reaching a settlement with the company. Thompson then received his "right to sue" letter from the EEOC (a necessary predicate to filing suit) and brought a lawsuit for retaliation against North American Stainless.

The company filed a motion for summary judgment, arguing that the facts alleged by Thompson did not amount to a cognizable cause of action. The federal district court agreed, ruling that Title VII's anti-retaliation provision does not prohibit employers from retaliating against third parties -- even if that retaliation is expressly designed to get back at an employee who had engaged in protected activity under the statute.

The U.S .Court of Appeals for the Sixth Circuit, in an en banc ruling, agreed. It held that only those who personally engaged in protected activity are protected from retaliation for doing so.

Title VII's Anti-Retaliation Provision

Title VII broadly prohibits employers from discriminating on the basis of certain protected characteristics like race, sex, ethnicity, and religion. It also -- as it must, to make the core rights meaningful -- expressly prohibits employers from retaliating against employees for enforcing their rights against discrimination. Without protection against retaliation, the promise of non-discrimination would be an empty one.

The anti-retaliation provision, Section 704(a) of Title VII, includes two clauses:

First, the "participation" clause makes it unlawful to discriminate against an employee "because ... he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." This clause is most often invoked to protect employees who participate in Title VII's formal enforcement mechanisms, such as filing a charge with the Equal Employment Opportunity Commission (EEOC) or a lawsuit.

Employee actions that are covered by this clause receive the broadest protection from retaliation, for this clause protects employees from adverse consequences regardless of the merits of the underlying discrimination complaint, as long as the employee acted in good faith in bringing the claim.

Second, an alternative source of protection from retaliation makes it unlawful for an employer to discriminate against an employee "because he has opposed any practice made an unlawful employment practice by this subchapter." The "opposition" clause has been applied to protect from retaliation those employees who oppose discrimination outside formal processes -- for example, by bringing concerns to the attention of the employer informally, rather than (or prior to) filing an EEOC charge.

The protection for employees under this second clause is narrower than the protection the first clause affords. Specifically, this second clause's protection is limited to only those acts of "opposition" that rest on an objectively "reasonable" belief (that is, a belief that is reasonable both factually and legally) that the employer actually violated Title VII.

The Supreme Court's Prior Rulings on the Scope of Title VII's Anti-Retaliation Provision

In recent years, the Supreme Court has considered several cases concerning the scope of protections against retaliation under federal antidiscrimination law. Collectively, these cases reflect the Court's recognition that strong protection from retaliation is vital to the law's prohibition of discrimination.

In 2006, in Burlington Northern Santa Fe Railway Company v. White, the Court considered whether a retaliatory act must be work-related in order to be actionable under Title VII, as well as which acts are serious enough to constitute unlawful retaliation. On both questions, the Court ruled in favor of employees. (We discuss this ruling in more detail in a prior column.) A retaliatory action need not be work-related to be actionable, as long as it is sufficient to dissuade a reasonable employee from complaining about discrimination. Thus, for example, a supervisor who throws a brick through an employee's home window to punish her for filing an EEOC charge has certainly committed actionable retaliation.

The Court also ruled in that case that an action is sufficient to trigger the anti-retaliation provision if it is materially adverse, which the Court defined as something that "might well have dissuaded a reasonable worker from making or supporting a charge of discrimination."

In 2009, in Crawford v. Metropolitan Government of Nashville and Davidson County, the Court considered what sort of cooperation was sufficient to trigger the "opposition" clause that is described above. The plaintiff in that case had answered questions truthfully in the employer's investigation into a supervisor's allegedly harassing behavior towards another employee, but the plaintiff had not initiated the conversation with the human resources officer, nor was she the original complainant. She did, however, give statements corroborating the complainant's allegations of the supervisor's harassment. Her employer argued that she was a mere passive witness and that her behavior did not constitute "opposition" to the harassment, leaving her unprotected from the subsequent retaliation she experienced.

The Court sided with the employee, holding that "opposition" encompassed both active resistance and instigation, but also offering a description of discriminatory behavior as long as the employee does not clearly indicate that she condones or supports it. As we have argued in a previous column, this interpretation of "opposition" was essential to preserve the integrity of the entire liability scheme.

In addition to Burlington Northern and Crawford, a handful of other recent opinions also demonstrate the Supreme Court's appreciation for the significance of protection from retaliation in ensuring the integrity of federal anti-discrimination statutes. Despite the absence of specific textual provisions, the Court has ruled that protection from retaliation is integrally related to substantive bans on discrimination and necessary to ensure the integrity of federal statutory enforcement schemes.

This principle is reflected in several decisions, including Jackson v. Birmingham Board of Education, decided in 2005 (Title IX), CBOCS West, Inc. v. Humphries, decided in 2008 (42 U.S.C. Section 1981), and Gomez-Perez v. Potter, decided in 2008 (the federal employee provisions of the ADEA).

Thompson, the case that is currently pending, will test the Court's commitment to that principle.

The Appellate Ruling in Thompson v. North American Stainless

With that background in place, we can now return to the case involving Thompson's claim that he suffered retaliation for Regalado's EEOC filing.

In a 10-6 ruling, the Sixth Circuit ruled that Thompson failed to state a viable cause of action in his complaint. Because Thompson never alleged that he personally engaged in any statutorily-protected activity -- either on his own behalf, or his then-fiancee's behalf -- a majority of the Circuit ruled that he is not protected by the anti-retaliation provision.

This conclusion, the majority reasoned, was a straightforward matter of statutory interpretation. The statute states that an employer is prohibited from discriminating "against any of his employees . . . because he has opposed any [unlawful discrimination] or because he has made a charge, testified, assisted, or participated in any manner in an investigation. . . ."

As the Sixth Circuit reads this provision, the employer is only prohibited from retaliating against the person who opposed discrimination -- not his or her family members or anyone else. Because Thompson did not allege that he opposed the discrimination against his fiancée or participated in an investigation of it, the Sixth Circuit concluded that he may not sue for retaliation.

Three other circuits have reached a similar conclusion -- that Title VII does not prohibit third-party retaliation. However, the ruling in Thompson is notable in that it truly makes a mess of the anti-retaliation rubric. No wonder, then, that several judges in Thompson dissented, arguing that the majority's "relentless reliance on ‘plain meaning'" with respect to the statute was misplaced. The dissenters argued that the statute's purpose of allowing employees to protect their rights free from fear should also have been heavily weighed by the majority.

In Part Two of this Series, we will describe the position each party has taken in its briefs filed with the Supreme Court. We will also explain why protection against third-party retaliation is an essential component of the statutory scheme.


Joanna Grossman, a FindLaw columnist, is a professor of law and John DeWitt Gregory Research Scholar at Hofstra University. She is the coeditor of Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press 2009), and the coauthor of a forthcoming book entitled Inside the Castle: Law and the Family in Twentieth Century America (Princeton University Press, forthcoming 2011). Her columns on family law, trusts and estates, and discrimination may be found in the archive of her columns on this site.

Deborah Brake is a professor of law and Distinguished Faculty Scholar at the University of Pittsburgh. Her research focuses on sex discrimination in employment, education, and athletics. Her book, "Getting in the Game: Title IX and the Women's Sports Revolution," was recently published by N.Y.U. Press.

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