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NoProtectionforFiancsUnder
Thompsonv.NorthAmericanStainless,
LP:HowtheSixthCircuitWrongly
DeniedThirdPartyRetaliationClaims
UnderTitleVII

LYNNEM.WOUNDY*

ABSTRACT

To encourage employees to bring forward claims of discrimination

under Title VII, Congress included 704(a), which prohibits employers
from discriminating against employees because they opposed any . . .
unlawful employment practice. However, it is unclear whether 704(a)
protectsathirdpartyspouse,relative,orfriendbasedsolelyontheirclose
relationship with an employee who engaged in protected activity. The
SixthCircuitCourtofAppealsrecentlydealtwiththisissueinThompsonv.
North American Stainless, LP. The plaintiff sued his employer alleging his
termination was in retaliation for his fiances sex discrimination
complaint. The Sixth Circuit found that the plain meaning of 704(a)
barred these types of thirdparty retaliation claims and that it was not
absurdforCongresstohavelimited704(a)inthisway.
Part I of this Comment provides an overview of Title VII and
retaliationclaims.PartIIexaminestheSixthCircuitsdecisioninThompson.
Part III argues that the Sixth Circuit should have allowed a thirdparty
retaliationclaim.ItfurtherarguesthattheSixthCircuitfailedtoaccurately
follow U.S. Supreme Court precedent and argues that the term oppose
should be read to encompass silent opposition of family members,
spouses,andindividualsinotherintimaterelationships.

*CandidateforJurisDoctor,NewEnglandSchoolofLaw(2011).B.A.,Criminology,magna

cumlaude,StonehillCollege(2008).

283
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INTRODUCTION

T
itle VII of the Civil Rights Act of 1964 prohibits employers from
discriminating against their employees on the basis of race, color,
religion,sex,ornationalorigin.1Inordertoencourageemployeesto
bring forward claims of discrimination without fear of retaliation from
their employers, Congress included 704(a) of Title VII, which prohibits
employers from discriminatingagainstemployees because theyopposed
anypracticemadeanunlawfulemploymentpracticebythissubchapter,or
because[theyhad]madeacharge,testified,assisted,orparticipatedinany
manner in an investigation, proceeding, or hearing under this
subchapter.2 Courts have held that this antiretaliation provision covers
third parties that actively and personally engage in protected activity on
behalfofanotheremployee.3However,itremainsunclearwhetherathird
party spouse, relative, or friend may bring a claim of retaliation under
704(a) based solely on their close relationship with an employee who
engaged in protected activity against their mutual employer.4 Although
retaliatingagainstamanbyhurtingamemberofhisfamilyisanancient
method of revenge, and is not unknown in the field of labor relations,5
courtshavefailedtorecognizeretaliationclaimsbroughtbytheseharmed
familymembers.6
The Sixth Circuit Court of Appeals recently dealt with the issue of
thirdpartyretaliationclaims.7InThompsonv.NorthAmericanStainless,LP,
the plaintiff sued his employer alleging his termination was in retaliation
for his fiances sex discrimination complaint against their mutual
employer.8 He argued that the antiretaliation provision, 704(a),
prohibited his employer from terminating him based on the protected
activity of his fiance.9 The Sixth Circuit affirmed the lower courts
summaryjudgmentfortheemployer,findingthattheplainmeaningof

142U.S.C.2000e2(a)(2006).

2Id.2000e3(a).
3Holt v. JTM Indus., Inc., 89 F.3d 1224, 1226 (5th Cir. 1996) (citing Jones v. Flagship Intl,

793F.2d714,727(5thCir.1986)).
4SeeinfraPartI.C.

5NLRBv.AdvertisersMfg.Co.,823F.2d1086,1088(7thCir.1987).

6SeeinfraPartII.

7Thompsonv.N.Am.Stainless,LP,567F.3d804,805(6thCir.2009),cert.granted,130S.Ct.

3542 (2010). The Supreme Court granted certiorari for this case on June 29, 2010 and heard
oralargumentsonDecember7,2010. SeeArgumentCalendarfortheSessionBeginningNovember
29, 2010, U.S. SUPREME COURT (2010), http://www.supremecourt.gov/ oral_arguments/
argument_calendars/MonthlyArgumentCalDecember2010.pdf.
8567F.3dat806.

9Id.at80506.
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2010 Thompson v. North American Stainless, LP 285

704(a) barred these types of thirdparty retaliation claims.10 The court

furtherheldthatitwasnotabsurdforCongresstohavelimitedtheclass
ofpersonswhoareentitledtosueinthisway.11
Part I of this Comment will provide an overview of Title VII and the
cause of action for retaliation under 704(a). It will also discuss relevant
case law and how other courts have ruled on thirdparty claims prior to
Thompson.PartIIwilltakeadetailedlookattheSixthCircuitsdecisionin
Thompson. Part III will argue that the Sixth Circuit erred in denying the
plaintiffs thirdparty retaliation claim against his employer. This section
will further argue that the Sixth Circuit failed to accurately follow U.S.
Supreme Court precedent after the recent decision in Crawford v.
MetropolitanGovernment.12ItwilldiscusshowtheCourtinCrawfordgreatly
expandedthemeaningofthetermopposeunder704(a)andwillargue
that this expansion should be read to encompass silent opposition of
family members, spouses, and individuals in other intimate relationships
withthosewhoengagedinprotectedactivity.

I. Background

A. TheCivilRightsActof1964andtheCauseofActionforRetaliation
intheEmploymentSetting

TitleVIIoftheCivilRightsActforbidsdiscriminationinemployment
against individuals based on their race, color, religion, sex, or national
origin.13Discriminationisprohibitedinhiringapplicantsanddischarging
employees;itisalsoprohibitedinthecompensation,terms,conditions,and
privileges of employment.14 Under 704(a) of the Civil Rights Act, also
knownastheantiretaliationprovision,Congressmadeitunlawfulforan
employer to discriminate against an employee because he has opposed
anypracticemadeanunlawfulemploymentpracticebythissubchapter,or
because he has made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing under this
subchapter.15 For example, an employer cannot retaliate against
employees who report discrimination in the workplace.16 The purpose of
thisprovisionistoenableemployeestosecuretheenforcementoftheActs

10Id.

11Id.at816.

12129S.Ct.846,851(2009).

1342U.S.C.2000e2(a)(2006).

14Id.2000e2(a)(1).

15Id.2000e3(a).

16Id.
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286 NewEnglandLawReview v.45|283

basic guarantees17 by allowing unfettered access to statutory remedial

mechanisms, and by removing the fear of retaliation so that more
employeesspeakoutagainstunlawfulconductbytheiremployer.18

B. TheMeaningoftheTermOpposein704(a)

The antiretaliation provision contains two clauses, the opposition

clause and the participation clause.19 This Comment focuses on the
opposition clause. This clause is expansive; employees who oppose
unlawful action by their employer that affects either themselves or their
coworkersareprotectedunderthisclause,aswellasemployeeswhorefuse
to discriminate against other individuals in the workplace.20 Cases
interpretingtheoppositionclausehaveofferedawiderangeofprotection
toemployeeswhoopposeunlawfulconductbytheemployerinorderto
further thestatutory purpose of Title VII.21 The termoppose under this
clauseisundefinedbythestatute,andtheSupremeCourthasstatedthat
thetermshouldthereforecarryitsordinarymeaning.22
In Crawford, the most recent Supreme Court case interpreting the
opposition clause, the Court rejected the Sixth Circuits23 interpretation of
the term oppose.24 The Supreme Court referred to the Sixth Circuits
definition of opposeactive, consistent, opposing activitiesas a
freakish rule.25 The Court explained that although this definition of
oppose is a common understanding, it is not the only way to define
opposition,andthus,itshouldnotbelimitedinthatway.26IntheSupreme

17BurlingtonN.&SantaFeRy.Co.v.White,548U.S.53,63(2006).

18Carrie B. Temm, Comment, ThirdParty Retaliation Claims: Where to Draw the Line, 54 U.

KAN.L.REV.865,867(2006)(quotingRobinsonv.ShellOilCo.,519U.S.337,346(1997)).
19Crawford v. Metro. Govt, 129 S. Ct. 846, 850 (2009). The opposition clause makes it

unlawful...foranemployertodiscriminateagainstany...employee[]...becausehehas
opposedanypracticemade...unlawful...bythissubchapter.Id.Theparticipationclause
makesitunlawful...foranemployertodiscriminateagainstany...employee[]...because
he has made a charge, testified, assisted, or participated in any manner in an investigation,
proceeding,orhearingunderthissubchapter.Id.
20Lorrie E. Bradley, Recent Development, Striking Back Against Retaliatory Discrimination:

How Burlington Northern & Santa Fe Railway Company v. White Expands Protections for
Employees Under Title VIIs Participation and Opposition Clauses, 85 N.C. L. REV. 1224, 123031
(2007).
21Id.at1232.

22Crawford,129S.Ct.at850(citingPerrinv.UnitedStates,444U.S.37,42(1979)).

23The Sixth Circuit is the same circuit that decided Thompson, the case focused on in this

Comment.
24SeeCrawford,129S.Ct.at851.

25Id.

26Id.
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2010 Thompson v. North American Stainless, LP 287

Courts list of other possible definitions for the term, the Court included
tobehostileoradverseto,asinopinion.27Asanexample,theSupreme
Courtstatedthatthetermopposeisoftenusedtorefertosomeonewho
hastakennoactionatalltoadvanceapositionbeyonddisclosingit.28The
Supreme Court stated that [c]ountless people were known to oppose
slavery before Emancipation, or are said to oppose capital punishment
today,withoutwritingpublicletters,takingtothestreets,orresistingthe
government.29TheSupremeCourtinCrawfordthereforegaveaverybroad
meaningofwhatopposeshouldentail.30

C. ThirdPartyRetaliationClaims

The most uncertain area of retaliation law involves thirdparty

retaliation claims brought by individuals who are retaliated against
because of the protected activities of another.31 There is currently
disagreement among the circuits on whether a cause of action exists for
these individuals under 704(a) of Title VII.32 The circuits that recognize
the claim have argued that failing to protect these individuals would be
inconsistent with the purpose of Title VII.33 Those circuits that do not
recognizetheclaimhavefoundthattheplainlanguageof704(a)barsit.34
The Fourth, Seventh, Eleventh, and the District of Columbia Circuits
recognizeatleastsomeformsofthirdpartyretaliationclaims.35Onereason
forallowingtheseclaimsisbecausewithouttheprotectionofthirdparties,
employeeswouldbedeterredfrombringingclaimsagainsttheiremployer
forfearthattheiremployerwouldfireaspouseorcloserelative.36This,in

27Id.at850.

28Id.at851.

29Id.

30SeeCrawford,129S.Ct.at85051.

31Temm,supranote18,at869.
32Seeid.
33AnitaG.Schausten,Comment,RetaliationAgainstThirdParties:APotentialLoopholeinTitle

VIIsDiscriminationProtection,37J.MARSHALLL.REV.1313,1313(2004).
34Id.

35Bairdexrel.Bairdv.Rose,192F.3d462,471n.10(4thCir.1999)(statingthattheplaintiff

hadaretaliationclaimbasedontheprotectedactivitiesofhermotherbecausehermotherwas
acting on the plaintiffs behalf); McDonnell v. Cisneros, 84 F.3d 256, 262 (7th Cir. 1996)
(holding that opposition includes failing to carry out an employers order to prevent his
subordinatesfromfilingdiscriminationcases);Wuv.Thomas,863F.2d1543,1548(11thCir.
1989) (allowing husband of employee who had brought a sex discrimination action against
their employer to maintain an action for retaliation); De Medina v. Reinhardt, 444 F. Supp.
573,581(D.D.C.1978)(holdingthattheplaintiffsclaimofretaliationbasedonherhusbands
antidiscriminationactivitiesisallowedunderTitleVII).
36DeMedina,444F.Supp.at580.
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turn, would defeat the purpose of the antiretaliation provision.37 These

circuits have also stated that a literal interpretation of 704(a) creates a
gapingholeintheprotectionofemployees,givingemployersimmunity
fromcertainretaliatoryactions.38
TheThird,Fifth,andEighthCircuitsprohibitthesetypesofthirdparty
retaliationclaims.39Thesecircuitshavearguedthattheclaimisinconsistent
withtheplainlanguageof704(a),interpretingthelanguagetorequirethe
employees themselves to engage in protected activity.40 Furthermore, the
circuits have reasoned that it is too difficult to define what relationships
would give plaintiffs automatic standing for thirdparty retaliation
claims.41 These courts have also argued that allowing the claims would
createmanyfrivolouslawsuitsandwouldpreventemployersfromtaking
anylegitimateadverseactionagainstanemployeeafteranotheremployee
engaged in protected activity.42 Lastly, the circuits have argued that this
claimwouldrarelybenecessarybecausemostrelativesandfriendswould
havealreadyparticipatedinthecoworkersprotectedactivity.43
The Equal Employment Opportunity Commission (EEOC)
Compliance Manual supports thirdparty retaliation claims based on
association.44Themanualprohibitsretaliationagainstsomeonesoclosely
related to or associated with the person exercising his or her statutory
rightsthatitwoulddiscouragethatpersonfrompursuingthoserights.45
The manualgoes on to explain that retaliation against a close relative of
an individual who opposed discrimination can be challenged by both the

37Id.

38McDonnell,84F.3dat262.

39Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 570 (3d Cir. 2002) (holding that because

adherence to the plain meaning of the statute would not be absurd, thirdparty retaliation
claims are not allowed); Smith v. Riceland Foods, Inc., 151 F.3d 813, 819 (8th Cir. 1998)
(holding that a plaintiff bringing a retaliation claim under Title VII must establish that she
personallyengagedintheprotectedconduct);Holtv.JTMIndus.,Inc.,89F.3d1224,1227(5th
Cir.1996)(holdingthataplaintiffdidnothavearetaliationclaimsimplybecausehisspouse
had engaged in protected activity). Some of these cases involved the interpretation of
retaliation under the Americans with Disabilities Act and the Age Discrimination in
EmploymentAct,ratherthanunderTitleVII.However,becauseallthreestatutoryprovisions
are nearly identical in language, precedent interpreting any one of these statutes is equally
relevantto[the]interpretationoftheothers.Fogleman,283F.3dat567.
40SeeHolt,89F.3dat1226.

41Id.at1227.

42SeeFogleman,283F.3dat570.

43Holt,89F.3dat1227.

44See EEOC Compl. Man. 8.II(B)(3)(c) (1998), available at http://www.eeoc.gov/policy/

docs/retal.html.
45Id.
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2010 Thompson v. North American Stainless, LP 289

individualwhoengagedinprotectedactivityandtherelative,whereboth
are employees.46 However, although the EEOC is given some deference
because it is an agency interpreting a federal statute that it also enforces,
courtsarenotboundbyit.47

II. Thompsonv.NorthAmericanStainless,LP

In Thompson, the Sixth Circuit considered en banc48 whether an

employee could bring a thirdparty retaliation claim based on a sex
discriminationcomplaintfiledbyhisthenfiance(nowwife)againsttheir
mutualemployer.49TheemployeeappealedwhentheDistrictCourtforthe
Eastern District of Kentucky granted summary judgment for the
employer.50TheSixthCircuitaffirmedthisjudgment,holdingthat704(a)
of Title VII did not create a thirdparty retaliation cause of action for
personswhohavenotpersonallyengagedinprotectedactivity.51TheSixth
CircuitheldthattheemployeedidnothaveaclaimunderTitleVIIbecause
he failed to allege that he had opposed the discrimination or made a
charge as required by the statute.52 The Sixth Circuit also rejected the
argument that the statute should protect persons closely related to or
associatedwiththosewhoengagedinprotectedactivity.53

A. Facts

In Thompson, the plaintiff, Eric Thompson, worked as a metallurgical

engineerforthedefendant,NorthAmericanStainless,from1997to2003.54
In 2000, Thompson met Miriam Regalado when she was hired by the
defendant; Thompson and Regalado started dating shortly thereafter.55 In
2002, Regalado filed a complaint with the EEOC against the defendant,
alleging sex discrimination by her supervisors.56 The EEOC notified the
defendant of this complaint on February 13, 2003.57 On March 7, 2003,

46Id.

47Temm,supranote18,at871.

48The
term en banc refers to when all judges of a particular court are present and
participatinginthehearing.BLACKSLAWDICTIONARY606(9thed.2009).
49Thompsonv.N.Am.Stainless,LP,567F.3d804,80506(6thCir.2009),cert.granted,130S.

Ct.3542(2010).
50Id.at806.

51Id.at80506.

52Id.at808.

53Id.

54Id.at806.

55Thompson,567F.3dat806.

56Id.

57Id.
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approximatelythreeweeksafterthisnotification,thedefendantterminated
Thompson.58 By the time Thompson was terminated, he and Regalado
were engaged, and their relationship was widely known within the
company.59 Thompson filed a complaint with the EEOC, alleging that his
termination was in retaliation for his thenfiances sex discrimination
complaint against the company.60 The defendant, however, argued that
Thompsonwasterminatedforperformancebasedreasons.61

B. ProceduralHistory

The EEOC found reasonable cause to believe that [the defendant]

violatedTitleVII.62TheEEOCissuedarighttosueletter,63andThompson
filed a claim against the defendant in the United States District Court for
the Eastern District of Kentucky.64 The defendant filed a motion for
summary judgment on the basis that Thompsons claim was insufficient
as a matter of law to support a cause of action under Title VII.65 The
district court granted the defendants motion for failure to state a claim
undereither42U.S.C.2000e2(a)ortheantiretaliationprovisionsetforth
in42U.S.C.2000e3(a).66ThompsonappealedthisjudgmentintheUnited
StatesCourtofAppealsfortheSixthCircuit,claimingthatthetermination
of an employee based on the protected activity of his fiance within the
samecompanyisprohibitedbytheantiretaliationprovisionofTitleVII.67
TheEEOCfiledanamicuscuriaebriefsupportingtheplaintiffspositionin
theappeal.68

58Id.
59Id.

60Id.
61Thompson,567F.3dat806.

62Id.

63The EEOC may issue a righttosue letter, which entitles the plaintiff to pursue his

complaintindistrictcourtafterdeterminingthatnohearinghasbeenheldinthecaseandthat
it has been twelve months since the complaint was filed. See, e.g., 5 EMPLOYMENT
DISCRIMINATIONCOORDINATORANALYSISOFSTATELAW30:90(2009)(describingtheprotocol
inMontana).
64Thompson,567F.3dat806.

65Id.

66Id.

67Id.

68Id.
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C. SixthCircuitsOpinionDenyingThirdPartyRetaliationClaims

TheSixthCircuit,reviewingthelowercourtsjudgmentdenovo,69held
that Thompson did not have a claim under Title VII because he failed to
allegethathehadopposeddiscriminationormadeachargeasrequired
by the retaliation provision.70 In so holding, the Sixth Circuit rejected the
argument that the statute should protect persons closely related [to] or
associated[with]thosewhoareengagedinprotectedactivity.71
Initsanalysis,theSixthCircuitfocusedontheplainlanguageofthe
text set out in 704(a), concluding that the statute is unambiguous, and
thereforetheplainmeaningofthetextmustbeapplied.72Thecourtstated
thatbecausethestatutorylanguageof704(a)isplain,thesolefunction
ofthecourt[was]toenforceitaccordingtoitsterms.73TheSixthCircuit
ruledthatthetextof704(a)isplaininitsprotectionofalimitedclassof
persons and that Thompson was not included in this class of persons
undertheretaliationprovision.74TheSixthCircuitarticulatedthatbecause
hedidnotopposeanunlawfulemploymentpracticeormakeacharge
under the statutory language, he did not meet the requirement that he
engage in protected activity under Title VII.75 The court reasoned that,
unlike the lack of limiting words in 704(a) regarding the scope of
actionableretaliationbytheemployer,704(a)isnotsilentaboutwhofalls
underitsprotection.76Thesectionexpresslydefinedtheclassofprotected
employeesasthosewhoopposeunlawfulemploymentorparticipated
in an investigation, hearing, or proceeding.77 Therefore, the class of
claimants is restricted to those who actually engaged in the protected
activity.78Furthermore,theSixthCircuitstatedthatCongressintendedto
limit this class of claimants by using qualifying words of action rather
thanwordsofassociation.79
The Thompson court acknowledged the Supreme Courts expanded
definitionofopposeinCrawford,butreasonedthatCrawfordsreachdid

69In a de novo appeal, the appellate court uses the trial courts record but reviews the

evidenceandlawwithoutdeferencetothetrialcourtsrulings.BLACKSLAWDICTIONARY112
(9thed.2009).
70Thompson,567F.3dat808.

71Id.

72Seeid.at80708.

73Id.at807(quotingCaminettiv.UnitedStates,242U.S.470,485(1917)).

74Id.at80708.

75Id.

76Thompson,567F.3dat815.

77Id.

78Id.

79Id.at816.
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notextendtothecircumstancesofthecaseatbar.80TheSupremeCourtin
CrawfordexpandedtheSixthCircuitspreviousinterpretationofoppose
under704(a)beyondactive,consistent,opposingactivitiestoinclude
employeeswhoareterminatedafterinvoluntarilytestifyinginaninternal
investigation.81 However, in Thompson, the Sixth Circuit argued that it
should not extend any further, relying on Justice Alitos concurrence in
Crawford.82Inhisconcurrence,JusticeAlitostatedthattheissue,whether
theoppositionclausealsoprotectedemployeeswhodidnotcommunicate
theirviewstotheemployerthroughpurposefulconduct,wasnotdecided
by the Supreme Court.83 Justice Alito also noted that to allow this would
have serious practical implications and would open courtroom doors for
cases where the employeenever expressed opposition.84 The SixthCircuit
concluded that even under the broadest interpretation of Crawfords
definition of opposeto be hostile or adverse to, as in opiniona
plaintiffmuststillengageinanidentifiableactofopposition.85
The court concluded its analysis by stating that the plain text of the
statutecannotbereadtoencompasspiggybackprotectionofemployees
like Thompson who, by his own admission, did not engage in protected
activity, but who ... merely associated with another employee who did
opposeanallegedunlawfulemploymentpractice.86

D. DissentingOpinionsinThompson87

In his dissenting opinion, Judge Martin strongly disagreed with the

majoritys reliance on the plain meaning of 704(a) and its conclusion
thatthemeaningofopposeisunambiguous.88Thejudgearguedthatthe
majorityfailedtorealizethattheterm isbroaderthantheyinterpretedit,
andattheveryleast,itisambiguous.89Inhisreasoning,thejudgepointed
to the Crawford decision that reversed the Sixth Circuits previous
application of plain meaning to the term oppose.90 In correcting the

80Seeid.at81213.

81SeeCrawfordv.Metro.Govt,129S.Ct.846,851(2009).
82Thompson,567F.3dat813.

83Id.(citingCrawford,129S.Ct.at855(Alito,J.,concurring)).

84Id.(citingCrawford,129S.Ct.at855(Alito,J.,concurring)).

85Seeid.at81314,816.

86Id.at816.

87InThompson,therewasaconcurrencebyJudgeRogersanddissentingopinionsbyJudge

Martin, Judge Moore, and Judge White. This Comment will only discuss the dissenting
opinionsbyJudgeMartinandJudgeMoore,astheyarethemostrelevanttothediscussion.
88Thompson,567F.3dat818(Martin,J.,dissenting).

89Id.

90Id.
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2010 Thompson v. North American Stainless, LP 293

SixthCircuit,theCrawforddecisiongreatlybroadenedtheterm.91InJudge
Martinsconclusion,hewrote,[b]asedonthetext,structure,history,and
Congressional purpose, I would hold these claims cognizable: I cannot
conceive that Congress wanted to categorically bar them through the
ambiguous,undefinedtermoppose.92
Another dissenting judge, Judge Moore, focused on the majoritys
dismissal of important Supreme Court precedent in this area, which she
argued supports a reading of 704(a) that includes Thompsons claim.93
JudgeMoorecitedseveralSupremeCourtcasestodemonstratetheCourts
broad approach when interpreting statutes that are designed to protect
employees against employer retaliation.94 She pointed out that the
majoritys narrow interpretation of oppose, on the other hand,
contradicts the purpose of the statute to allow unfettered access to
statutory remedial mechanisms.95 Judge Moore stated that Crawford
changedthelawofretaliation,andthereforeThompsonsclaimshouldbe
considered in light of this case.96 Instead the court slams the door on
Thompsons claim while paying mere lip service to Crawfords expansive
holding, which is improper in light of binding Supreme Court
precedent.97

III. TheSixthCircuitsIncorrectRejectionofaThirdPartyRetaliation
Claim

Thompsonshouldhaveavalidretaliationclaimundertheopposition
clause. This interpretation is supported by past Supreme Court decisions
applying a broad approach to retaliation statutes98 and the expanded
interpretation of oppose in Crawford.99 Thirdparty retaliation claims
would also further the purpose of the statute.100 Lastly, thirdparty
retaliation claims based on silent opposition still meet the statutory
requirement of oppose without adding additional language, and
therefore, allowing these claims would be consistent with the text of the

91Seeid.

92Id.at819.

93Id.at820(Moore,J.,dissenting).

94Thompson,567F.3dat824(Moore,J.,dissenting).

95Id.at82021(quotingBurlingtonN.&SantaFeRy.Co.v.White,548U.S.53,64(2006)).

96Id.at824.

97Id.

98Id.at820.

99SeeCrawfordv.Metro.Govt,129S.Ct.846,85051(2009).

100See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 63 (2006); supra text

accompanyingnotes1718.
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statute.101

A. TheSixthCircuitErredinApplyingthePlainMeaningof
704(a).

BasedonSupremeCourtprecedentandtheprinciplesforapplyingthe
plain meaning of a statute, the Sixth Circuit incorrectly relied on the
plain meaning standard in its interpretation of 704(a).102 When
analyzing statutory language, if the language of a statute is plain in its
meaning, courts must enforce the statute according to its terms, unless to
dosowouldhaveabsurdresults.103However,theplainnessofastatuteis
determinedbyreferencetothelanguageitself,thespecificcontextinwhich
thatlanguageisused,andthebroadercontextofthestatuteasawhole.104
In its application of the plain language of the statute, the Sixth Circuit
foundthatbasedonthetextalone,itwasplainthattheplaintiffwasnotin
theclassofpersonsforwhomCongresscreatedarightbecausehehadnot
opposed an unlawful practice.105 The court relied on the Third Circuit
decision in Fogleman v. Mercy Hospital Inc. in its conclusion that the
languageof704(a)wasplain.106TheThirdCircuitinFoglemanfocusedon
the phrase such individual in the statute, which requires the person
discriminated against to also be the person who engaged in protected
activity.107TheThompsoncourtagreedwiththeconclusioninFoglemanthat
thestatuteisunambiguousbecauseitwasclearfromthelanguagethatan
individualmustengageinprotectedactivity.108
However, the statutory language is not unambiguous, and the Sixth
Circuit was wrong to apply this statutory interpretation.109 Although it is

101SeeCrawford,129S.Ct.at85051.

102See id. at 850 (stating that the term oppose is undefined); Lamie v. U.S. Tr., 540 U.S.

526,534(2004)(Thestartingpointindiscerningcongressionalintentistheexistingstatutory
text....Itiswellestablishedthatwhenthestatuteslanguageisplain,thesolefunctionofthe
courtsat least where the disposition required by the text is not absurdis to enforce it
accordingtoitsterms.)(citationsomitted)(internalquotationmarksomitted);UnitedStates
v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221 (1952) ([W]e may utilize, in construing a
statutenotunambiguous,allthelightrelevantlysheduponthewordsandtheclauseandthe
statutethatexpressthepurposeofCongress.).
103Thompson,567F.3dat807.

104Id. at 820 (Moore, J., dissenting) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341

(1997)).
105Id.at808(majorityopinion).

106Seeid.at81011.

107Id.at811(citingFoglemanv.MercyHosp.Inc.,203F.3d561,568(3dCir.2002)).

108Seeid.

109See Crawford v. Metro. Govt, 129 S. Ct. 846, 85051 (2009) (explaining the meaning of

thetermoppose).
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plain that an individual must engage in protected activity himself, the

courtignoredabroaderinterpretationofthetermopposeinitsanalysis
andasaresultfailedtoconsidertowhatextentanindividualmustengage
in protected activity.110 There is no set statutory definition for oppose
under704(a),andthereforethetextisnotplainindiscerningtheextentto
whichaplaintiffmustopposeunlawfulactivityunderthestatute.111Itis
clear from Crawford that the issue of thirdparty retaliation claims is not
resolved based solely on the plainlanguage of 704(a).112 According to
JudgeMartinsdissentinThompson,Crawford...drasticallyundercutthe
majoritystunnelvisionviewthatthiscaseconcernsonlyastraightforward
debateaboutwhetherclearstatutorytextcontrolsoversomeunexpressed
Congressional purpose.113 Therefore, the Sixth Circuit erred in using the
plainmeaningofthestatutebecausethetermopposeisnotplain.114

B. CrawfordSuggestsanInclusionofSilentOppositionUnder
704(a).

The Supreme Courts discussion in Crawford suggests an inclusion of

silent opposition in the statutory term oppose.115 This interpretation
would open the door for thirdparty retaliation claims brought by close
relatives, partners, and possibly friends.116 The Court stated that one
definition of the term oppose is to be hostile or adverse to, as in
opinion.117 The Court gave an example of people opposing slavery
without writing public letters, taking to the streets, or resisting
government.118 The Sixth Circuit failed to consider this broader view of
oppose.119 Instead, without further analysis, the court concluded that
Crawfordsreachdoesnotextendtothepresentcircumstances.120

110SeeThompson,567F.3dat818(Martin,J.,dissenting).

111SeeCrawford,129S.Ct.at850.

112See id. at 85051 (stating that the term oppose is undefined and the Sixth Circuits

previousdefinitionofthetermwastoonarrow);KevinP.McGowan,SixthCircuitsDenialof
ThirdParty Claims Could Bring Next Phase of Retaliation Debate, 33 Empl. Discrimination Rep.
(BNA) No. 3, at 82 (Jul. 15, 2009) (By insisting 704(a)s plain language disposed of
Thompsons claim, it ignored Crawfords larger message that Title VIIs retaliation clause is
ambiguous and should be construed broadly in favor of protection. (quoting a plaintiffs
attorneywithElfvin&Besser)).
113Thompson,567F.3dat818(Martin,J.,dissenting).

114Seeid.

115SeeCrawford,129S.Ct.at85051.

116Seeid.

117Id.at850.

118Id.at851.

119SeeThompson,567F.3dat824(Moore,J.,dissenting).

120Id.at813(majorityopinion).
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Furthermore,theSixthCircuitmisusedtheconcurrenceinCrawford;121
nothing in the concurrence alleged that the term oppose barred silent
opposition.122 As support that Crawford did not extend to the facts in
Thompson, the Sixth Circuit quoted Justice Alitos Crawford concurrence,
which stated that the question whether the opposition clause shields
employees who do not communicate their views to their employers
throughpurposiveconductisnotbeforeusinthiscase.123However,this
statement suggests nothing about whether the term oppose would
explicitly bar silent opposition.124 Furthermore, Justice Alito conceded
that,infact,thetermopposeisnotplain.125Heacknowledgedthatitis
far from clear whether silent opposition is excluded from the term
oppose.126 Therefore, the Sixth Circuit should have analyzed whether
silent opposition is allowed under 704(a) in light of the Crawford
decision.127

C. ThirdPartyRetaliationClaimsWouldBeConsistentwithSupreme
CourtPrecedentInterpretingRetaliationProvisionsBroadly.

The Sixth Circuit also erred by failing to consider the pattern of

SupremeCourtprecedentholdingthatabroadapproachshouldbeapplied
when interpreting antiretaliation provisions.128 The Supreme Court has
consistently interpreted 704(a) liberally in order to comply with the
statutesoverallpurpose.129Forexample,theSupremeCourtinRobinsonv.
ShellOil,Co.,heldthatformeremployeesarecoveredbytheantiretaliation
provisioneventhoughitisnotexplicitlystatedinthestatute.130TheCourt
explained that reading the statute narrowly would eliminate protection
against employment discharge retaliation.131 Because this would be
contrary to the purpose of the statute, the Supreme Court instead
interpreted the statute broadly.132 More recently, the Supreme Court in
BurlingtonNorthern&SantaFeRailwayCo.v.Whiteagainconstrued704(a)

121Seesupratextaccompanyingnotes8285.
122SeeThompson,567F.3dat819(Martin,J.,dissenting).

123Id.at813(majorityopinion)(quotingCrawford,129S.Ct.at855(Alito,J.,concurring)).

124Seeid.at819(Martin,J.,dissenting).

125Id.(citingCrawford,129S.Ct.at85455(Alito,J.,concurring)).

126Id.

127Seesupratextaccompanyingnotes11524.

128Thompson,567F.3dat820(Moore,J.,dissenting).

129SeeAlexB.Long,TheTroublemakersFriend:RetaliationAgainstThirdPartiesandtheRight

ofAssociationintheWorkplace,59FLA.L.REV.931,973(2007).
130Robinsonv.ShellOilCo.,519U.S.337,346(1997);seeSchausten,supranote33,at1332.

131Schausten,supranote33,at1332.

132Seeid.
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in a broad manner.133 The Court interpreted 704(a) broadly in order to

increasethescopeofindividualswhocanbringclaimsundertheprovision
and to further the provisions purpose.134 The Court held that the anti
retaliation provision covers employer actions that would have been
materiallyadversetoareasonableemployeeorjobapplicant,notjustthose
actionsthatarerelatedtoemployment.135OtherSupremeCourtdecisions,
although not dealing specifically with 704(a), also demonstrate the
Courts dedication to furthering the purpose of protective statutes.136
Despitethisprecedent,theThompsoncourtinterpreted704(a)narrowlyin
awaythatdirectlycontradictsthepurposeofthestatute.137

D. RetaliationClaimsBasedonSilentOppositionFurtherthe
PurposeoftheAntiRetaliationProvision.

Thirdpartyretaliationclaimsfurtherthepurposeoftheantiretaliation
provision by providing unfettered access to statutory remedial
mechanisms.138 By interpreting the statute narrowly, the Sixth Circuit
provided a loophole for employers to discriminate against employees.139
Barringtheseclaimsallowsemployerstodoindirectlywhattheycannotdo
directly.140 By allowing employers to fire someone close to an employee
withoutconsequence,employeesaredeterredfrombringingacomplaintin
the first place.141 This defeats the purpose of the statute to end

133BurlingtonN.&SantaFeRy.Co.v.White,548U.S.53,67(2006).

134Seeid.at6364.

135Id.at57.

136See generally CBOCS W., Inc. v. Humphries, 553 U.S. 442, 452, 457 (2008) (holding

retaliation claims are allowed under 42 U.S.C. 1981 even though the statute does not
mentionretaliation);GomezPerezv.Potter,553U.S.474,491(2008)(interpretingtheADEA
to include retaliation claims under discrimination based on age even though the statute
doesnotmentionretaliation).
137Thompson v. N. Am. Stainless, LP, 567 F.3d 804, 82021 (6th Cir. 2009) (Moore, J.,

dissenting),cert.granted,130S.Ct.3542(2010).
138Schausten, supra note 33, at 1330 (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 346

(1997)).AlthoughtheSixthCircuitstatedthatThompsonsfiancecouldstillbringaclaimfor
retaliation, this is an insufficient remedy because it would not enable Thompson to receive
back pay or to be reinstated. See Thompson, 567 F.3d at 822 n.5 (Moore, J., dissenting); De
Medina v. Reinhardt, 444 F. Supp. 573, 580 (D.D.C. 1978). This in turn would frustrate the
makewholepurposeofTitleVII.Id.
139See Temm, supra note 18, at 870 (explaining that without protection for third parties,

employers could fire anyone when another employee engaged in protective activity and
wouldnotbeheldliable).
140Long,supranote129,at950.

141Seeid.at944.
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discriminationandprovideunfetteredaccesstoremedies.142Thefailure
to recognize thirdparty retaliation claims has a chilling effect on the
enforcementofcivilrightsbecauseemployeeswillfearthatbybringinga
complaintagainsttheiremployer,theyriskretaliationagainsttheirfamily
members and loved ones.143 Conversely, allowing such a claim exposes
employers to greater liability and encourages individuals to voice their
complaints against their employers.144 As a result, employers would have
anincentivetoremedydiscriminationintheworkplace.145Therefore,third
partyretaliationclaimsshouldberecognized.146

E. SilentOppositionUnder704(a)ShouldbeLimitedinIts
Application.

The expansion of silent opposition should be limited to cases

involving spouses, intimate relationships, and family membersnot
friends, acquaintances, and mere coworkers. In cases involving spouses,
intimaterelationships,andfamilymembers,itisreasonabletoinferthata
plaintiffopposeddiscriminationagainstalovedone.147Itisalsoreasonable
to infer that in these cases, employers would fear or suspect that the
plaintiff participated in the protected activity of his or her loved one.148
Therefore, in these cases there should be a presumption of opposition.
Employerswouldhavetheopportunitytorebutthispresumptionbecause
thereisalwaysthepossibilitythattherelationshipisweakornonexistent
uponacloserlook.149Theemployercouldalsosetoutasadefensethatit

142Seeid.

143John B. Lough, Jr., Employers Still Cannot Retaliate: Crawford v. Metropolitan

GovernmentofNashville,HAW.B.J.,Oct.13,2009,at4,10.
144Bradley,supranote20,at1237.

145Id.
146Seeid.Itisimportanttonotethatthereisnorelevantlegislativehistorythatexplainsthe

choice of wording in 704(a), but it is likely that Congress did not include thirdparty
claimsi.e.,discriminationagainstanindividualbecauseofafriendsorrelativesprotected
activitiesinthelanguageofthestatutesimplybecauseofpureoversight.SeeMcDonnellv.
Cisneros,84F.3d256,262(7thCir.1996).Usually,oneretaliatesagainstapersonbecausethat
person did something, not because of someone elses actions; therefore, it is likely that
Congressdidnotconsiderthepossibilityofthirdpartyreprisals.Id.However,itisundeniable
thatCongressintendedtoensurethatnoonewouldbedeterredfrombringingTitleVIIclaims
asaresultofretaliation.DeMedinav.Reinhardt,444F.Supp.573,580(D.D.C.1978).
147See Thompson v. N. Am. Stainless, LP, 567 F.3d 804, 824 (6th Cir. 2009) (Moore, J.,

dissenting),cert.granted,130S.Ct.3542(2010).
148SeeSchausten,supranote33,at1334.

149Cf.Temm,supranote18,at889(arguingthatcertainrelationshipsarepresumedtodeter

individuals from engaging in protected activity and thirdparty retaliation claims should be
allowedbasedontheserelationships,unlesstherelationshipisinfactnonexistent).
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wasunawareoftherelationship.150
The limits set out above would assuage the fear of flooding the
courts with frivolous claims.151 Only a limited number of relationships
would qualify under silent opposition, and even in these cases, the
presumed opposition could be rebutted.152 Furthermore, the employer
could still take legitimate adverse action against an employee who is
related to another employee engaged in protected activity.153 Frivolous
claims brought by employees against their employers who partook in a
legitimate adverse action generally will not get beyond summary
judgment.154Theemployeemuststillshowtherequirementsofaretaliation
claimitselfspecifically,acausallinkbetweentheemployersactionand
theprotectedconduct.155Inaddition,thecourtsthemselveshavesaidthat
reliance on silent opposition would be a rare scenario because, in most
cases,relativesandfriendswillhaveparticipatedinsomemannerintheir
coworkerscomplaintagainsttheemployer.156Therefore,allowingsilent
oppositionincertaincaseswouldprovidebetterprotectionforemployees
and further the purpose of the statute; at the same time, frivolous claims
wouldbeminimizedbylimitingtheindividualswhoqualifyundersilent
opposition.157

CONCLUSION

The Sixth Circuit erred in its conclusion that no retaliation cause of

action exists for the fianc of an employee who engaged in protected
activity.158 Considering the history of the Supreme Courts broad
interpretation of retaliation provisions in order to further the statutes
purposes,159 and especially in light of the Supreme Courts Crawford
decisionthatgreatlyexpandedthemeaningofopposein704(a),160the
SixthCircuitdidnotaccuratelyfollowSupremeCourtprecedent.Instead,
the Sixth Circuit erroneously applied plain meaning to the statute,

150Cf.id.at88990(explainingthat[a]nemployerwhoisignorantofarelationshipcannot

retaliatethroughthatrelationship).
151Contraid.at878.

152Cf.id.at894.

153Contraid.at878.

154SeeLong,supranote129,at970.

155Id.

156SeeThompsonv.N.Am.Stainless,LP,567F.3d804,811(6thCir.2009),cert.granted,130

S.Ct.3542(2010).
157SeesupraPartIII.Dandtextaccompanyingnotes14750.

158SeesupraPartIII.

159SeesupraPartIII.C.

160SeesupraPartI.B.
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ending its analysis, when it was clear that the term oppose is not
unambiguous.161 The Supreme Court in Crawford greatly expanded the
termopposesothatitcouldreasonablybeunderstoodtoincludesilent
opposition by an employees close relatives and intimate partners.162
Therefore, the Sixth Circuit, based on the Crawford decision, should have
allowed Thompsons thirdparty retaliation claim due to his employers
adverseactionsafterhisfiancefiledasexdiscriminationcomplaint.163

161SeesupraPartIII.A.

162SeesupraPartIII.B.

163SeesupraPartIII.