Two more plaintiffs’ victories: the Sixth Circuit recognizes a direct cause of action under Title VII for friends and family members of persons engaged in protected activity, while the Fourth Circuit sends an EEOC religious harassment case back for trial.
Thompson v. North American Stainless, No. 07-5040 (6th Cir. Mar. 31, 2008): Courts have previously recognized that it may be materially adverse to an employee, engaged in protected activity under the anti-retaliation section of Title VII and other acts, to exact punishment against a family member or friend in the same workplace. Courts have also held that an employee is protected against retaliation even when she or he engages an agent to oppose discrimination, the Seventh Circuit recently held in EEOC v. V&J Foods, Inc., 507 F.3d 575, 101 FEP 1676 (7th Cir. 2007) (where the mother complained on behalf of a teen employee). But to my knowledge, the Sixth Circuit with this case becomes the first court of appeals unambiguously to confer a direct cause of action on victims of such third-party retaliation, even when they themselves did not oppose or participate in proceedings against discrimination.
In a nutshell, here are the allegations:
“According to the complaint, Regalado filed a charge with the Equal Employment Opportunity Commission (EEOC) in September 2002, alleging that her supervisors discriminated against her based on her gender. On February 13, 2003, the EEOC notified North American Stainless of Regalado’s charge. Slightly more than three weeks later, on March 7, 2003, the defendant terminated Thompson’s employment. Thompson alleges that he was terminated in retaliation for his then-fiancée’s EEOC charge, while North American Stainless contends that performance-based reasons supported the plaintiff’s termination.”
The employer won summary judgment on the ground that Title VII’s anti-retaliation section, by its own terms, covers only individuals who “opposed any practice made an unlawful employment practice by this subchapter, or . . . made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3. But the Sixth Circuit in a 2-1 opinion reversed, holding that Supreme Court and the Sixth Circuit have previously sanctioned interpretations of Title VII that broadened the scope of coverage beyond its literal language, most notably Robinson v. Shell Oil, 519 U.S. 337 (1997) (the term “employee” in the anti-retaliation section includes former employees). The panel majority also deferred the EEOC’s Compliance Manual, which endorses extension of liability to protect by-standers.
Ultimately, a slight widening of the protected scope of employees was necessary — according to the majority — to shore up the anti-retaliation section. “Of greater concern to the court would be the result of a contrary ruling. That is, permitting employers to retaliate with impunity for opposition to unlawful practices, filing EEOC charges or otherwise participating in such efforts, as long as that retaliation is only directed at family members and friends, and not the individual conducting the protected activity.”
The dissent predictably seized on the definition of “employee” that covers individuals only for their own opposition/participation activities. But even the “employee,” as thus narrowly defined, suffers a materially adverse action when her own kith and kin are punished. Not only is there the survivor guilt associated with keeping your job, while Mom or Sis is consigned to joblessness, but in some events there is even a direct pecuniary injury (a spouse who’s fired costs household income). Such vicarious punishment I would think falls within the scope of Burlington Northern & Santa Fe Railway Co. v. White, 126 S. Ct. 2405 (2006), as activity that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” The same cause of action exists no matter which employee brings it.
EEOC v. Sunbelt Rentals, No. 07-1123 (4th Cir. Mar. 31, 2008): While I can usually understand rationalize defense victories in employment discrimination cases, the district court’s grant of summary judgment in this Title VII harassment case was beyond the pale. The facts defy summarization, but the employee here — a Muslim — became the whipping boy for anti-Muslim anger in his workplace after the combined terrorist attacks of 9/11 and the “Beltway sniper” killings in the Washington DC area.
Here’s a taste of the record:
“Specifically, Ingram was subject to repeated comments that disparaged both him and his faith. Several coworkers, including one with supervisory authority, referred to Ingram in harshly derogatory terms. Mike Warner, the store’s shop foreman, called Ingram ‘Taliban’ ‘over and over again,’ as well as ‘towel head.’ Likewise, Sal Rindone, a Sunbelt mechanic, told Ingram that he thought Ingram was a member of the Taliban. This same coworker also challenged Ingram’s allegiance to the United States, asking Ingram ‘are you on our side or are you on the Taliban’s side,’ and telling him that if ‘you don’t like America or where we stand, you can just leave.’ Ingram, a veteran of the United States Army, responded that he was not a member of the Taliban but rather ‘an American and a Muslim.’
“In addition, Ingram was persistently harassed about his appearance, particularly his kufi and beard. For example, Warner, when making fun of Ingram’s appearance, ‘would make it known that’ he thought Ingram actually ‘look[ed] like a Taliban.’ On at least one occasion, Gray called Ingram a ‘fake Muslim’ because of his beard. As Gray later admitted, such ‘comments were made often.’ According to Ingram, the harassment by Gray was ‘an ongoing thing, daily.’
“Ingram was also harassed about his short, Sunbelt-sanctioned prayer sessions. Gray told Ingram ‘several times’ that he had a ‘problem’ with Ingram leaving his desk to pray. In addition, Ingram’s timecard was often hidden on Fridays, the day he went to congregational prayer. Even more severe was a comment made by Warner to another coworker, which was later related to Ingram. Warner said that if he ever caught Ingram praying upstairs, that would be ‘the end of him.'”
Somehow, against the tide of common sense, the district court managed to hold in an oral ruling that this behavior (and a lot more) fell short of a severe or pervasive hostile work environment. (Memo to EEOC: do not take a bench trial.) But the Fourth Circuit reversed. Held the panel, “If Americans were forced to practice their faith under the conditions to which Ingram was subject, the Free Exercise Clause and the embodiment of its values in the Title VII protections against workplace religious prejudice would ring quite hollow. Title VII makes plain that religious freedom in America entails more than the right to attend one’s own synagogue, mosque, or church. Free religious exercise would mean little if restricted to places of worship or days of observance, only to disappear the next morning at work. In this regard, Title VII helps ensure the special nature of American unity, one not premised on homogeneity but upon the common allegiance to and customary practice of our constitutional ideals of mutual respect.”