Court of Appeals Upholds Cause of Action for Third-Party Retaliation. 

May 7th, 2008

In a case of first impression in that particular court, another federal Court of Appeals has upheld the right of an employee to maintain a retaliation case based on his fiancee’s rather than his own protected activity. The Plaintiff in that case was terminated three weeks after his fiancée, who also worked for the Company, filed a charge alleging sex discrimination. The reason given by the Company for Plaintiff’s dismissal was poor performance. Giving a broad interpretation to the U.S. Supreme Court’s Burlington decision, the Court held there was “no doubt that an employer’s retaliation against a family member after an employee files an EEOC charge would, under Burlington, dissuade ‘reasonable workers’ from such an action.” In other words, an employer should not be able to dissuade an employee from filing a charge by threatening to take or by taking retaliatory action against someone closely related to or associated with the employee. The Court reasoned that its holding supported the rationale behind the retaliation provision in the statute; namely, the need to support an employee’s right to report or participate in the investigation or correction of discriminatory conduct. One judge dissented, accusing the majority of amending the statute to create a new cause of action and noting that three other Courts of Appeal had rejected such an extension. The Eleventh Circuit (covering Alabama, Georgia and Florida) has not issued a ruling on this precise issue. Thompson v. North American Stainless, L.P., 2008 U.S. App. LEXIS 6776 (6th Cir. 2008).