The Supreme Court’s decision in Massey v. A. T. Massey Coal Company has occupied my attention so far this week, but today I want to look at a decision issued earlier this month by the United States Court of Appeals for the Sixth Circuit.

Eric Thompson and his then-fiancé, Miriam Regalado, worked together at North American Stainless. Regalado filed a charge with the Equal Employment Opportunity Commission alleging that the company had discriminated against her because of her gender. A few months later, the company terminated Thompson allegedly for performance-based reasons, although he alleged that it was in retaliation for Regalado‘s EEOC charge.  In other words, if the company couldn’t terminate her, it would terminate him to get back at her.

Title VII of the Civil Rights Act of 1964 prohibits retaliation against employees where the employee has opposed any practice that is an unlawful employment practice (such as gender discrimination) or has testified, assisted in or participated in an investigation, proceeding or hearing.

Thompson filed suit, and the district court granted the company’s motion for summary judgment and found that he did not state a claim under either Title VII’s anti-discrimination provision or its anti-retaliation provision.

He appealed, and last year, a three-judge panel from the Sixth Circuit held 2-1 that Title VII prohibit employers from retaliating against employees who are not directly involved in protected activity, but who are so closely related to or associated with those who are directly involved that it is clear that the protected activity motivated the employer’s action. Thompson v. North American Stainless, LP, 520 F.3d 644 (6th Cir. 2008).

North American Stainless petitioned the Sixth Circuit for rehearing en banc, and the court granted the petition and vacated the panel’s decision.   

Following its en banc reconsideration, the court held 10-6 in Thompson v. North American Stainless, LP¸ 2009 WL 1563443 (6th  Cir. 2009), that § 704(a) of Title VII of the Civil Rights Act does not create a cause of action for third-party retaliation for persons who have not personally engaged in protected activity. Only those persons who have personally engaged in protected activity by opposing a practice, making a charge or assisting or participating in an investigation may maintain a claim.

Thompson did not claim that he had personally engaged in any protected activity, but that he was terminated in retaliation for Regalado’s EEOC charge.

The majority opinion for the en banc decision was written by Judge Richard Allen Griffin, who dissented from the three-judge panel’s decision that held for Thompson.

The majority stated that by adopting Thompson’s position, the court would have 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[,]”  which the court declined to do. 

The majority pointed out that the Third, Fifth, and Eighth Circuits have previously considered and rejected similar third-party retaliation claims, which seemed to influence its view.  

Here are an article by Tresa Baldas about the decision in yesterday’s National Law Journal, as well as Bob Ambrogi’s post today in Legal Blog Watch.

Baldas’ article points out that the Seventh and Eleventh Circuits have extended protection from retaliation to third parties, a fact also noted by Judge Karen Nelson Moore in her dissent (which was one of three separate dissents). 

It doesn’t  appear that the Fourth Circuit has ruled on a retaliation-by-association claim.