Title VII, the Third-Party Retaliation Issue, and the 'Plain Language' Mirage

Abstract

In Thompson v. North American Stainless, LP a unanimous Supreme Court held that Section 704(a) of Title VII of the Civil Rights Act of 1964 provides employees with a cause of action challenging an employer’s alleged third-party retaliation. In Thompson the employer, notified by the Equal Employment Opportunity Commission that an employee had filed a discrimination charge, terminated the employment of the charging party’s fiancé who was also an employee of the company. The Court reviewed the United States Court of Appeals for the Sixth Circuit’s holding that the plain language of Section 704(a), Title VII’s anti-retaliation provision, does not recognize third-party retaliation claims. Guided by its 2006 decision in Burlington Northern & Santa Fe Railway v. White and reversing the Sixth Circuit, the Court concluded that a reasonable worker might be dissuaded from engaging in activity protected by Title VII if she knew that her activity would result in the retaliatory firing of her fiancé. As discussed herein, the Court’s disagreement with the Sixth Circuit and other lower courts’ determinations that Section 704(a) only proscribed two-party retaliation is grounded in the Court’s emphasis, not on the “plain language” mirage of the statute, but on statutory purpose and a judicially-formulated and context-sensitive standard governing the adjudication of Section 704(a) claims.

Keywords: Title VII, discrimination, retaliation, third-party retaliation; statutory interpretation, plain language, textualism, purposivism