Employment-Sixth Circuit Rules That The Anti-Retaliation Provision Of Title VII Does Not Create A Cause of Action For An Individual Who Has Not Personally Engaged In A Protected Activity

In Thompson v. North American Stainless, LP, No. 07-5040 (6th Cir. 2009), the Court faced the question of whether § 704(a) of Title VII of the Civil Rights Act of 1964-which generally proscribes retaliation against an individual who exercises his or her rights under Title VII- creates a cause of action for an individual who is a victim of third-party retaliation, but who has not personally engaged in an activity protected by Title VII. After reviewing § 704(a), the Court announced that it was joining the Third, Fifth, and Eighth Circuit Courts of Appeal in holding that § 704(a) provides a cause of action only for an individual who has personally engaged in an activity protected by Title VII by opposing a practice, making a charge, or assisting or participating in an investigation.

In Thompson, from February 1997 through March 2003, the plaintiff, Eric Thompson, worked as a metallurgical engineer for defendant North American Stainless, LP (“North American Stainless”). Thompson met Miriam Regalado, currently his wife, when she was hired by North American Stainless in 2000, and the couple began dating shortly thereafter. Regalado had 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. At the time of the termination, Thompson and Regalado were engaged to be married, and their relationship was common knowledge at North American Stainless. Thompson alleges that he was terminated in retaliation for his then-fiancée’s EEOC charge, while North American Stainless countered that performance-based reasons supported the plaintiff’s termination. Thompson’s suit eventually found its way to the Sixth Circuit Court of Appeals.

In ruling on the case, the Court noted that § 704(a) of Title VII provides that “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” (emphasis added). The Court read § 704(a) as creating a cause of action for a limited class of individuals. To be included in this class, an individual must show that the individual’s employer discriminated against him because the individual personally engaged in an activity described in § 704(a). In the instant case, Thompson did not claim that he engaged in any of those activities, either on his own behalf or on behalf of Miriam Regalado. Thompson’ financée had engaged in one of the activities by filing the charge with the EEOC, but Thompson himself had not. Thus, the Court concluded that § 704(a) does not provide Thompson with a cause of action.