Friday, June 5, 2009

BREAKING NEWS: En banc panel of 6th Circuit reverses prior holding in Thompson v. North American Stainless and rejects associational retaliation claims

There are many types of relationships among employees in a workplace besides being co-workers. Many employees develop close friendships. Many businesses employee individuals from the same family – parents and their children, siblings, cousins, etc. Some employees work with their spouse. And some friendships develop into more, leading to dating, engagement, and even marriage.

Suppose an employee files a charge with the EEOC, and three weeks later, that employee’s fiancée is fired? Does the fiancée have a retaliation claim? Despite the fact that the fiancée engaged in no protected activity of his own, early last year in Thompson v. North American Stainless, the 6th Circuit permitted the employee to proceed with a retaliation claim by recognizing a claim for associational retaliation:

Title VII prohibit[s] employers from taking retaliatory action against employees 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. (emphasis added).

This morning, an en banc panel of the same court overturned its prior holding and expressly rejected this theory of associational retaliation.

Significantly, Thompson does not claim that he engaged in any statutorily protected activity, either on his own behalf or on behalf of Miriam Regalado…. By application of the plain language of the statute, Thompson is not included in the class of persons for whom Congress created a retaliation cause of action because he personally did not oppose an unlawful employment practice, make a charge, testify, assist, or participate in an investigation….

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.

Retaliation continues to be of the most dangerous employment-law risks to face employers. By limiting this potential liability, this decision is a huge win for Ohio businesses. Employers no longer have to worry about how close of a relationship is close enough for a potential retaliation claim. As far as retaliation is concerned, employers need only worry about employees who actually engage in their own protected activity. Isn’t that enough for employers to worry about? 

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