As previously explained, the employer was alleged to have fired the plaintiff just three weeks after his fiance filed a Charge of Discrimination with the EEOC against the employer. He did not allege that he personally had engaged in any protected conduct, but rather, that his termination was in retaliation for the protected conduct of his fiance. In turn, the employer asserted that he was terminated because of his job performance.
The Court examined the anti-retaliation language in Title VII:
It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.
There was nothing in this language about protecting individuals who did not engage in any protected activity under the Act. The majority found the language clear and unambiguous and elected to defer to Congressional intent to not enlarge the protected class of individuals under the statute.
In essence, plaintiff and the EEOC request that we become the first circuit court to hold that Title VII creates a cause of action for third-party retaliation on behalf of friends and family members who have not engaged in protected activity. However, we decline the invitation to rewrite the law.
. . .
In sum, no circuit court of appeals has held that Title VII creates a claim for third-party retaliation in circumstances where the plaintiff has not engaged personally in any protected activity. Although plaintiff and the EEOC argue that the language of § 704(a) is ambiguous and that enforcement of the statutory text will lead to absurd results, we disagree, as do the Third, Fifth, and Eighth Circuits, which have soundly rejected such a cause of action.
However, the court recognized the tension with the policy argument endorsed by the Supreme Court in Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006), when it stated:
We conclude that the anti-retaliation provision does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace. We also conclude that the provision covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant. In the present context that means that the employer’s actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.
Nonetheless, the Court distinguished Burlington because the plaintiff in that case had engaged in protected conduct and the question presented to the court was the scope of retaliatory behavior. "We must look to what Congress actually enacted, not what we believe Congress might have passed were it confronted with the facts at bar. For the reasons we have laid out, it was not “absurd” for Congress to limit the class of persons who are entitled to sue to employees who personally opposed a practice, made a charge, assisted, or participated in an investigation. Our interpretation does not undermine the anti-retaliation provision’s purpose because retaliation is still actionable, but only in a suit by a primary
actor who engaged in protected activity and not by a passive bystander."
Insomniacs can read the full opinion at http://www.ca6.uscourts.gov/opinions.pdf/09a0202p-06.pdf.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.
