Although Title VII protects employees from being retaliated against for complaining or reporting discriminatory activity within the workplace, courts have been reluctant to extend that protection to third parties who do not themselves engage in any protected activity.  The United States Supreme Court will step in to resolve that issue later this term when it hears the case of Thompson v. North American Stainless. 

In Thompson, originating in the Sixth Circuit, the plaintiff alleges that he was terminated in retaliation for his fiancée filing a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC) against their mutual employer.  The plaintiff was terminated a mere 3 weeks after the employer was notified of the Charge.  In response, the employer has countered that that the plaintiff was not retaliated against within the meaning of Title VII because he did not personally actively oppose any unlawful employment practice or participate in any discrimination proceeding. 

The federal district court ruled in favor of the employer, a decision later upheld by the Sixth Circuit Court of Appeals which held that Title VII does not create a cause of action for alleged retaliation against third parties who do not themselves engage in protected activity.  Because the plaintiff in Thompson did not allege that he himself engaged in any statutorily protected activity (i.e., did not oppose an unlawful employment practice, nor make a charge, testify, assist, or participate in any investigations), the appellate court held that, pursuant to the plain language of Title VII, the plaintiff was not included in the class of persons for whom Congress created a retaliation cause of action. The appellate court also noted that its sister appellate courts in the Third, Fifth and Eighth Circuits have held likewise.  The appellate court distinguished the Supreme Court’s recent decision in Crawford v. Metro Gov’t of Nashville and Davidson County, Tenn. by stating that the plaintiff in Crawford, although not having initiated a complaint, had engaged in a protected activity by providing involuntary testimony while the plaintiff in Thompson did not engage in any protected activity.

Now, the Supreme Court will have the opportunity to resolve the issue of whether Title VII protects from retaliation third parties who do not, themselves, engage in protected activity but are somehow related or connected to those who do.  

This newsletter is a publication of Nochumson P.C. and is intended for general information only. It should not be construed as legal advice with respect to any particular situation, and readers should not act upon information contained in this newsletter without first consulting an attorney. Copyright © 2009.