Does An Employee Have A Claim For Retaliation Because Of The Protected Activity Of A Third Party

This article will examine whether an employee has any legal claims for the protected activity of a third party, under Title VII or the First Amendment. While Title VII based claims are on hold pending Supreme Court consideration, public employees still enjoy First Amendment protection for the First Amendment activity of their spouse.

Supreme Court to Consider Whether "Innocent" Third Parties are Protected from Retaliation Under Title VII

"Annie" was seeking a good job with one of the Big Three auto companies. Her fiancé and cousin already worked for the company. When she spurned the sexual advances of the hiring supervisor, "Mr. Snively," she not only didn't get the job she sought, but her fiancé and cousin were fired shortly thereafter. As her bewildered cousin walked out of the meeting where he was fired, he passed Snively, who smirked and said, "Say hi to Annie for me."

As an Employment Law Attorney , I represented all three of those plaintiffs, and they each received a settlement. But that was before the 6 th Circuit, en banc, recently interpreted Title VII's anti-retaliation language to exclude innocent third parties, like Annie's fiancé and cousin, from recovering even though they may be targeted for retaliation due to another employee's protected activity.

In Thompson v. North American Stainless, LP, 567 F.3d 804 (6 th Cir. 2009), the plaintiff alleged he was fired from defendant company because his wife, who also worked there, had just filed an EEOC charge three weeks earlier. Plaintiff husband filed his own EEOC charge, and the EEOC found "reasonable cause to believe that defendant violated Title VII." Conciliation was unsuccessful, and plaintiff sued. The district court dismissed, finding that plaintiff, who did not himself engage in protected activity, but claimed protection only because of his association with his wife, did not meet the literal criteria of Title VII's anti-retaliation provision, which states:

"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."

The Sixth Circuit originally reversed, in a published 2008 opinion, finding sound reasons grounded in public policy and legislative history for permitting a retaliation claim by association. But rehearing the case en banc, the court reversed, reading the statute more textually, joining the Third, Fifth, and Eighth Circuit in barring such claims. The Supreme Court has granted certiorari in this case, and it is scheduled to be argued this December.

Third Party Retaliation Nonetheless Protects Public Employees, Under the First Amendment, for the Protected Activity of their Spouse

In the meantime, under some circumstances, third party retaliation may be protected under a different theory. The Sixth Circuit has recognized that where a public employee is terminated in retaliation for the protected activity of his or her spouse, it violates the employee's First Amendment right of freedom of association as it relates to "certain intimate human relationships." Specifically, this right is violated if the adverse employment action "constitutes an "undue intrusion" by the state into the marriage relationship." Adkins v. Board of Education of Magoffin County, Ky., 982 F2d 952 (6 th Cir 1993). In that case, where a school secretary was not recommended for continued employment due to her marriage, the court permitted a cause of action.

The 6 th Circuit addressed the doctrine in more detail in Sowards v. Loudon County, 203 F 3e 426 (6 th Cir 2003), finding it applied where plaintiff jail employee was retaliated against when her husband announced his candidacy for sheriff. The court held that if the adverse employment action ws "substantially motivated by her protected First Amendment Rights," the employee was entitled to trial.

A defense exists if the government can show it is advancing a "legitimate governmental interest" [e.g., Vaughn v. Lawrenceburg Power System, 269 F 3d 703 (6 th Cir. 2001)]. However, the good news for plaintiffs' attorneys is that the courts have held that this rational basis defense was a question of fact for the jury - not a question of law to be determined at the summary judgment stage [Gaspers v. Ohio Dept. of Youth Servs., 627 F Supp 2d 832, 852 (S.D. Ohio 2009)].

One area of caution is the conflict between Soward's seeming evidentiary threshold, that a plaintiff need only prove "substantial" illegal motivation, and that announced in an anti-nepotism case, Montgomery v. Carr, 101 F 3d 1117 (6 th Cir 1996) in which the court limited the cause of action where "the only motivation" was retaliation for the protected activity.

Nonetheless, at least until the Supreme Court speaks concerning third party retaliation in Title VII cases, there remains First Amendment protection for public employees who suffer adverse actions because of the protected activity of their spouse.

Nick Roumel is a Principal with NachtLaw, P.C., Nacht & Roumel, P.C. in Michigan and Ohio. He is grateful to his associate Ned Macey for doing the research for this article. If you're in need of an experienced Employment Law Firm, please call us at 888-312-7173.

  • Super Lawyers
  • Million Dollar Advocates Forum
  • Distinguished TM AV - LexisNexis Martindale-Hubbell PeerReview Rated For Ethical Standards And Legal Ability