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RETALIATION: IS IT ILLEGAL TO RETALIATE AGAINST AN EMPLOYEE’S WIFE?
What is the scope of Title VII’s retaliation language? If a company retaliates not against the employee but against his child or spouse, does the child or wife have a viable claim of illegal retaliation? The Sixth Circuit, concurring with three other circuit courts, said no. Thompson v. North American Stainless, LP, 567 F.3d 804 (6th Cir. 2009).
The court’s decision is grounded in the language of the statute which makes it unlawful:
“…for an employer to discriminate against any of his employees…because he has opposed any practice made an unlawful practice…or because he has made a charge, testified, assisted, or participated…in an investigation, proceeding, or hearing under this subchapter.” (emphasis added).
The court concluded that the text of this language is “plain in its protection of a limited class of persons,” and to be included in that class, a person must show that his employer discriminated against him because he opposed a practice made unlawful by Title VII. It rejected plaintiff’s argument, supported by EEOC, that Title VII should protect claimants who are closely related to or associated with the person who engaged in protected activity.
Plaintiff’s most compelling argument was grounded in the Supreme Court’s decision in Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). In that case the Supreme Court held that retaliation under Title VII is not confined to actions that affect an employee’s terms of employment and can include “actions that would have been materially adverse to a reasonable employee…to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Plaintiffs argued that firing the employee’s spouse would clearly fall within these parameters.
The court rejected this argument, noting that the Burlington Northern decision addressed the scope of retaliation committed by the employer, not whether Title VII permits an employee who did not himself engage in protected activity to bring a retaliation claim. It also noted that accepting this argument would cancel the explicit requirement that the charging party himself must engage in the activity protected by Title VII.
The court seemed to agree that retaliating against an employee’s spouse is inconsistent with the purposes of Title VII, but concluded that concerns about the statutory purpose could not override specific statutory language quoted above. EEOC has since indicated that it will not change its Compliance Manual in response to the court’s opinion, which means that findings of probable cause will continue to be issued even though EEOC’s interpretation has been rejected by four circuit courts.
