Title VII of the Civil Rights Act of 1964 protects employees from retaliation by their employers after complaining about discrimination in the workplace. This case involves not the employee who complained, but her fiance, who was terminated from his job. He claimed the termination was in retaliation for his fiancee's complaint, while the company cites performance-related problems. The company also argued that the plain language of the statute provides claims only to those who make a charge or otherwise participate in an investigation, proceeding or hearing.
A 3-judge panel of the Sixth Circuit ruled that a fiance or other person that is closely related or associated with those who are directly involved in protected activity may sue if there is a "causal connection between the protected activity and adverse employment action." The trial judge had ruled that the plaintiff had presented no evidence that he had participated in any protected activity.
The NAM filed an amicus brief urging the full complement of Sixth Circuit judges to uphold the trial judge, arguing that the statute is clear on its face and already protects those who "oppose discriminatory employment practices" or "participate" in equal employment proceedings. A rule that permits third-party retaliation claims would increase even more dramatically retaliation charges, which are the fastest-growing category of charges filed under Title VII, and would put employers in the untenable position of having to speculate about possible relationships an employee may have that could give rise to potential liability each time they contemplate disciplinary or other action against that employee.
This case presents a clear example of judges reading statutes in a way to achieve a policy objective rather than to enforce the text as written. A strong dissent by one judge in this case warns against legislating from the bench.
On June 5, 2009, the full Sixth Circuit ruled that "the authorized class of claimants [in third-party retaliation cases] is limited to persons who have personally engaged in protected activity by opposing a practice, making a charge, or assisting or participating in an investigation." The majority affirmed dismissal of the case against the company, finding the language in the anti-retaliation provision plain on its face. Congress did not provide a cause of action by those who do not personally oppose an unlawful employment practice, make a charge, testify, assist or participate in an investigation. The text of the statute should not be disregarded in favor of arguable public policy preferences.
The Supreme Court agreed on 6/29/2010 to hear this case on appeal.