Split Created: Does Title VII Permit Third Party Retaliation Claims?

Per Thompson v. N. Am. Stainless, LP, 2008 WL 834005 (6th Cir. Mar. 31, 2008)

Plaintiff Eric Thompson and his wife, Miriam Regalado met while both worked for North American Stainless. Two years into her employment, Regalado filed a claim of gender-discrimination with the EEOC. Three weeks after the EEOC notified North American Stainless of the complaint, Thompson, whose engagement to Regalado was common knowledge, was fired. Thompson asserts that this constituted impermissible retaliation; North American states that Thompson was fired for performance reasons. Thompson sued for violation of Title VII, and the district court granted summary judgment for North American because Thompson failed to state a claim under the anti-retaliation provision of Title VII.

The anti-retaliation provision forbids employers from discriminating against any of his employees because, in relevant part, “he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” The issue in this case is that Thompson did not make or participate the charge; his fiancée/wife, Regalado, did. The question is whether the protections of the statute extend beyond the plain language of the section.

“Specifically, does Title VII prohibit employers from taking retaliatory action against employees not directly involved in protected activity, but who are so closely related to or associated with those who are directly involved, that it is clear that the protected activity motivated the employer's action? As such conduct would undermine the purposes of Title VII, we hold that such retaliatory action is prohibited.” *3. In particular, the Sixth Circuit notes that the EEOC Compliance Manual specifically prohibits retaliation against closely-related third parties. *4.

In so holding, this divided panel creates a split from the other circuits to have considered the question. The CAs 3,5,8 all have rejected closely related third party retaliation claims, holding that the plain language of the statute trumps the risk that its purposes would be undermined. After discussing these cases, the dissent continues to note that the EEOC manual is entitled to no deference when the meaning of the statutory text is plain. On the other hand, the CAs 7 and 11 have permitted, in other circumstances, extra-textual readings of the retaliation provisions in to further to the goals of Title VII. This case strikes me as a prime candidate for review, either en banc or by the Court.

Interestingly, previous Sixth Circuit precedent provided persuasive authority for the CA2’s conclusion today in Holcomb v. Iona College – additional coverage from How Appealing and Wait a Second! – that “an employer may violate Title VII if it takes action against an employee because of the employee's association with a person of another race.” *2. This proposition has been upheld by every circuit to have considered the issue (CAs 5,6,11 and now 2) despite the statutory language requiring the discrimination to be “because of such individual’s race.” (emphasis added). The courts have justified their conclusion because, if the discrimination is because of the association with someone of another race, the employee’s own race does play a role – it defines what another race is. I doubt that these broad readings of the statutory text must stand or fall together, given the textual linkage in the CA2’s justification, but the correlation is interesting.

Split Noted: What is the Proper Application of the Ministerial Exception?

Per Rweyemamu v. Cote, 2008 WL 746822, *17 n. 4 (2d Cir. Mar. 21, 2008)

Plaintiff, Father Justinian Rweyemamu, filed a Title VII suit alleging that the Diocese of Norwich (CT) racially discriminated against him by denying him a promotion and, ultimately, firing him. This is not the first lawsuit arising from these facts; Father Rweyemamu had previously appealed to higher church authorities as well as filed state law claims of discrimination. The Church found ‘just cause’ for his removal. In this suit, as in the preceding state claims, the district court cited the ‘ministerial exception’ and dismissed the case.

Dating to approximately 1900, the ministerial exception is a doctrine that reflects an unwillingness of the courts to interfere with ecclesiastical hierarchies. The exception is part of the common law tradition, rather than specifically enacted by Congress into Title VII. This Second Circuit panel stresses the First Amendment heritage of the exception (both free exercise and establishment are implicated), emphasizing that it is not simply a matter of judicial abnegation. Just for fun, note that this decision concerning abnegation and the Catholic Church came down on Good Friday.

During the discussion of the ministerial exception, however, Judge Walker notes that the circuits have split on how to apply it. CAs 1,3,9,10 treat the exception as a waivable affirmative defense. CAs 6,7 treat it as a jurisdictional bar. Finally, CAs 5,11 treat the ministerial exception as just that – an exception meaning that Title VII does not apply to claims between a church and its ministers. This case is the first in which the Second Circuit affirms the existence of the ministerial exception. It does not delineate its view of the boundaries and application of the exception in this case, where any of the three views would bar judicial review. The panel therefore affirms, finding Title VII unconstitutional as applied to Father Rweyemamu’s claims.

Additional coverage from How Appealing and Wait a Second!.

UPDATED: As the comment from Wait a Second!'s author notes, I misread his entirely accurate summary. I have changed my mischaracterization and apologize.