By recognizing a cause of action for third-party retaliation, the Supreme Court's decision in Thompson v. North American Stainless, LP1 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.
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 of 1964
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."5 President Johnson concluded the speech by asking Americans to set aside divisions and to focus the nation's resolve on banishing from America "the last vestiges of injustice."6
1. Roosevelt and Executive Order 8802
The roots of Title VII took hold during the administration of President Franklin Roosevelt.7 Spurred by the need for employees in defense industries and demands for equality made by black civil rights and labor organizers, President Roosevelt signed Executive Order 8802 in June 1941.8 Although it lacked the protection against sex discrimination that eventually appeared in Title VII of the Civil Rights Act,9 the Executive Order avowed there would be "no discrimination in the employment of workers in defense industries or government because of race, creed, color, or national origin."10 The President ordered the government to adopt measures to ensure effective administration of defense training programs without discrimination and required all government contracts to include a provision prohibiting discrimination against members of the protected categories.11
Foreshadowing Title VII's creation of the Equal Employment Opportunity Commission (EEOC),12 the Order established a Committee on Fair Employment Practices (FEPC).13 The FEPC was to "receive and investigate complaints of discrimination" and "take appropriate steps to redress grievances . …