Tread Lightly: Third-Party Retaliation Claims after Thompson V. North American Stainless

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I. INTRODUCTION

II. Background

   A. History of Title VII of the Civil Rights Act of 1964

      1. Roosevelt and Executive Order 8802

      2. Truman and the Committee on Civil Rights

      3. Kennedy, Johnson, and the Great Society

   B. Title VII, the Anti-Retaliation Clause, and the EEOC

      1. Title VII's Anti-Retaliation Clause

      2. The Establishment of the EEOC

   C. The Courts and Third-Party Retaliation Claims

      1. Recognizing a Cause of Action for Third Parties

      2. Refusing to Recognize a Third-Party Retaliation Claim

   D. The Supreme Court Decides Thompson

III. ANALYSIS

   A. The Sixth Circuit's Analysis in Thompson II

      1. A Better Standard for the Sixth Circuit

      2. Third-Party Retaliation: Some in, Some out

   B. The Supreme Court's Approach to Thompson

      1. The Supreme Court's Retaliation Surprise

      2. Does Thompson Go Far Enough?

      3. What's an Employer to Do?

      4. What Are the Lower Courts Doing with Thompson?

IV. RECOMMENDATION

   A. Modify Policies to Accommodate Thompson

      1. A Minor Relationship

      2. Knowledge of the Relationship

      3. Retaliatory Intent

   B. Third-Party Retaliation Under the ADA and the ADEA

   C. Look to the EEOC for Guidance

      1. Rely on the EEOC's Specific Identifications

      2. Tread Lightly

V. CONCLUSION

I. Introduction

By recognizing a cause of action for third-party retaliation, the Supreme Court's decision in Thompson v. North American Stainless, LP (1) repudiated the conclusions of four Circuit Courts of Appeals. (2) Although a cause of action for third-party retaliation is a significant expansion of Title VII's retaliation protection, employers can minimize potential detrimental effects. Employers must recognize the scope of third-party retaliation protection and adopt appropriate responses to accommodate the new protection.

Part II of this Note traces the general history and purpose of Title VII, examines Title VII's statutory provisions, including the anti-retaliation provision, and concludes with an overview of both early and late third-party retaliation cases. Part III analyzes the Sixth Circuit's Thompson decision and examines responses to that decision. Part III then analyzes the Supreme Court's Thompson decision, subsequent scholarly commentary, and two subsequent district court orders analyzing Thompson. Finally, Part IV notes some important considerations for employers in adopting new policies and procedures in light of Thompson. These considerations include the apparent requirements for bringing a third-party retaliation claim, the likelihood that third-party retaliation protection will extend to other laws, and the need for the EEOC to identify some relationships entitled to third-party retaliation protection. Notwithstanding these specifically identified relationships, employers should be mindful of the possibility that courts will expand the scope of third-party retaliation protection.

II. Background

This Part proceeds in four directions. The first describes briefly the history of the Civil Rights Act of 1964. Following the historical primer is an examination of some of Title VII's provisions and a description of the role of the EEOC. Court decisions, in which some courts did, and some courts did not, recognize third-party retaliation claims are then discussed. Finally, a brief description of the Supreme Court's decision in Thompson v. North American Stainless concludes the Part.

A. History of Title VII of the Civil Rights Act of1964

On July 2, 1964, President Lyndon Johnson delivered a televised speech hailing the passage of the Civil Rights Act of 1964, which included Title VII. (3) Before Title VII, the President asserted, people of all races and colors fought America's wars and built America's prosperity, but some had been denied equality. (4) President Johnson declared that from that day forward, all Americans would "be equal in the polling booths, in the classrooms, [and] in the factories. …