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Argument preview: Does Title VII create a cause of action for third-party victims of retaliation?

Title VII of the Civil Rights Act prohibits employers from retaliating against employees who report discrimination based on race, sex, or religion.  The Equal Employment Opportunity Commission (EEOC), which is charged with enforcing Title VII, has long maintained that the law’s anti-retaliation protection extends to third parties who are terminated because of their relationship with employees who oppose discrimination.  The Third, Fifth, Sixth, and Eighth Circuits, however, disagree. Today, in Thompson v. North American Stainless (No. 09-291), the Court will hear argument to resolve this question.


Petitioner Eric Thompson worked for respondent North American Stainless at its steel manufacturing plant in Kentucky, as did Miriam Regalado – formerly Thompson’s fiancée and now his wife.  In 2003, Regalado – who was one of only a few women engineers at the plant – filed a gender discrimination charge against the company with the EEOC in which she alleged that her supervisors treated her poorly because of her gender.  Approximately three weeks after North American Stainless learned of Regalado’s charge, it terminated Thompson, ostensibly for performance reasons.

Thompson filed his own EEOC charge and eventually a lawsuit in federal district court, alleging that North American Stainless violated Title VII’s anti-retaliation provision by firing him because of his fiancée’s complaint. The district court granted summary judgment for North American Stainless, concluding that Title VII does not provide a cause of action for retaliation against an associated third party.  

On appeal, the Sixth Circuit reversed.  Grounding its holding in deference to the EEOC and the statute’s purpose, the panel concluded that “[t]here is no doubt that an employer’s retaliation against a family member after an employee files an EEOC charge would . . . dissuade ‘reasonable workers’ from such an action.”

A divided en banc panel vacated that decision, however, and held that Thompson’s claim should indeed be dismissed.  Reasoning that Thompson did not himself engage in any statutorily protected activity – such as voicing opposition to Regalado’s treatment, or assisting in the EEOC’s investigation – the en banc majority held that Thompson was not included in the class of persons for whom the text of Section 704 of Title VII created a retaliation cause of action.

Thompson filed a petition for certiorari, which the Court granted on June 29, 2010.  Justice Kagan is recused from the case, apparently because as the Solicitor General she participated in discussions regarding an amicus brief (filed at the Court’s invitation and recommending that certiorari be denied) filed by the United States at the certiorari stage.

Merits Briefing

Although the Court granted cert. to address two separate but related questions, only one now appears contested by the parties.  Both sides agree that firing an employee’s relative because of the employee’s discrimination complaint amounts to unlawful retaliation against the complaining employee.  That is, no one disputes that Miriam Regalado could have brought suit against North American Stainless for retaliating against her by terminating Thompson.  But the parties disagree about whether Thompson may himself bring suit under Title VII to redress the injuries he suffered as consequence of the same conduct.

Thompson and the United States, appearing as an amicus in support of petitioner, argue that the answer to this questions lies not in Section 704, which is Title VII’s substantive anti-retaliation provision, but instead in Section 706, the statute’s general remedial provision, which provides a cause of action for all “persons claiming to be aggrieved” by an unlawful employment practice under the Act.  Relying on Trafficante v. Metropolitan Life Insurance Co. (1972), Thompson and the government argue that the phrase “persons . . . aggrieved” encompasses third-party victims who suffer injury when an employer violates another employee’s Title VII rights.

In Trafficante, the Court broadly interpreted an analogous phrase in the Fair Housing Act to provide a cause of action to any plaintiff with Article III standing, and it allowed the white tenant of a segregated housing complex to challenge racial discrimination against black rental applicants.  In reaching this holding, the Trafficante Court analogized the Fair Housing Act provision to Title VII’s similar enforcement provision, and it cited approvingly to a Third Circuit decision holding that in Title VII Congress had expanded standing beyond prudential limits. 

To construe the statute otherwise, the government argues in this case, would “leave the individual who was fired at the mercy of someone else to remedy his injury.”  And if Regalado brought suit, Thompson points out, she would face difficulties obtaining back pay or damages payable to Thompson.

North American Stainless makes several arguments in response.  First, the issue of whether Thompson is a “person aggrieved” under Section 706 is not properly before the Court, it contends, because Thompson failed to raise this argument below.  Second, Section 706’s reference to “persons . . . aggrieved” does not waive the prudential standing bar to Thompson’s suit.  Citing Lujan v. National Wildlife Federation, North American Stainless argues that the term “aggrieved” does not encompass everyone who is injured by violations under the Act, but instead only those whose injuries fall within the rights protected by the statutory provision whose violation forms the legal basis for their claim.

Third, the text of Section 704 – the substantive retaliation provision – limits the class of persons who may bring suit for retaliatory conduct to those who engage in activity expressly protected under the provision (i.e., opposing or reporting discrimination). 

Finally, the company warns that Thompson’s approach would hurt employers by creating “automatic job protection” for employees who claim a close association to a co-worker who complains of discrimination.

Recommended Citation: Erin Michelle Mohan, Argument preview: Does Title VII create a cause of action for third-party victims of retaliation?, SCOTUSblog (Dec. 7, 2010, 9:10 AM),