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Is being friends with a co-worker who made discrimination and harassment complaints against a supervisor grounds for a retaliation claim under Title VII? According to a recent ruling by the New Hampshire United States District Court, such a claim may be viable. As explained more fully below, in Equal Employment Opportunity Commission v. Fred Fuller Oil Co., (D.N.H. Jan. 31. 2014), the court held that an employee who claimed she was fired in retaliation for her friend's discrimination and harassment complaint could pursue a claim against their mutual employer under Title VII of the Civil Rights Act. This decision is part of a trend following the U.S. Supreme Court's 2011 ruling on third-party retaliation claims.
The Law: Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., bars discrimination on the basis of an employee's race, color, religion, sex, or national origin with "respect to . . . compensation, terms, conditions, or privileges of employment." In addition to the antidiscrimination provision, Title VII's antiretaliation provision prohibits an employer from "discriminat[ing] against any of his employees . . . because [the employee] has opposed any practice made unlawful [under Title VII] or because [the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII]."
In 2006, the United States Supreme Court held that "the antiretaliation provision, unlike the substantive [antidiscrimination] provision, is not limited to discriminatory actions that affect the terms and conditions of employment." Burlington N. & S. F.R. Co. v. White, 548 U.S. 53, 64 (2006). Instead, the Court adopted a broader standard and held that Title VII's antiretaliation provision prohibits any employer action that "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Id. at 68. Accordingly, a traditional Title VII retaliation claim requires a plaintiff to prove that (1) he or she undertook protected conduct; (2) his or her employer took adverse action against him or her; and, (3) a causal nexus exists between the protected conduct and the adverse action.
U.S. Supreme Court 2011 Decision Allowing Third-Party Retaliation Claims: In 2011, the Court further broadened the scope of Title VII's antiretaliation provision in Thompson v. North American Stainless, LP, by holding that retaliation claims could be based on employer reprisals taken against a third party, as opposed to reprisals directed at the reporting employee. 131 S. Ct. 863, 868-69 (2011). In Thompson, the Court held that a woman's fiancée had standing to file a Title VII retaliation claim when he was fired after she filed a sexual harassment charge against their common employer. Id. The Court acknowledged that its holding would likely "lead to difficult line-drawing problems concerning the types of relationships entitled to protection," but refused to create a categorical rule, stating,
We . . . decline to identify a fixed class of relationships for which third-party reprisals are unlawful. We expect that firing a close family member will almost always meet the Burlington standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize. As we explained in Burlington, "the significance of any given act of retaliation will often depend upon the particular circumstances."
Id. at 868 (internal citations omitted). Accordingly, pursuant to the Court's holding in Thompson, a plaintiff asserting a third-party retaliation claim under Title VII would need to prove (1) that someone closely related to the plaintiff engaged in an activity protected by Title VII; (2) that the plaintiff's employer took adverse action against him or her; and, (3) that there is a casual link between the protected activity engaged in by the individual closely related to the plaintiff and the adverse action.
Subsequent court rulings have held that a suspected "dating relationship" is not "the type of close relationship that third-party retaliation claims are designed to protect because taking adverse action against a suspected romantic partner is not likely to dissuade a reasonable worker from reporting harassment." See Rodriguez-Vega v. Policlincia la Familia de Toa Alta, Inc., Civ. Nos. 11-2235, 11-2236 (D.P.R. Apr. 29, 2013). In that case, the court decision was based on the plaintiffs' assertion that "they were only friends and never admitted to having a romantic relationship." Id.
The Fuller Decision: In January of this year, the United States District Court for the District of New Hampshire weighed in on the issue and demonstrated a very broad interpretation of the types of relationships that may be sufficient to establish a third-party retaliation claim. In Fuller, the EEOC brought suit against Fred Fuller Oil Company on behalf of two former employees, Nicole Wilkins and Beverly Mulcahey. The complaint alleges that Fred Fuller, the principal of Fred Fuller Oil Company, sexually harassed both women and further asserts that the company fired Mulcahey in retaliation for Wilkins' complaints about the harassment that Wilkins alleges to have suffered prior to her alleged constructive discharge.
In pertinent part, the company sought to dismiss Mulcahey's third-party retaliation claim asserting that Mulcahey and Wilkins' relationship was insufficiently close to assert a third-party retaliation claim. There is no allegation that Mulcahey filed any complaints of discrimination or harassment while an employee of the company. Further, there is no allegation Mulcahey and Wilkins are family members or that they are in a romantic relationship. Instead, the complaint alleges that Mulcahey was a "close friend" of Wilkins, the individual who engaged in the protected conduct. According to the complaint, the women had worked together at a prior company, Wilkins assisted Mulcahey in getting her job with Fred Fuller Oil Company, the women's children played together, and they displayed cards and photographs of each other on their desks. Furthermore, the complaint asserts that Fred Fuller was aware of their close friendship.
The District Court (Barbadoro, J.) held that, on these facts, the company's motion was premature and refused to dismiss Mulcahey's third-party retaliation claim, stating,
This relationship, as pled, exists somewhere in the fact-specific gray area between close friend and casual acquaintance. Although I could not say that such a friendship definitively supports a successful [third-party retaliation] claim, I also cannot say as a matter of law that it does not. I may revisit this issue upon a proper motion after discovery.
Accordingly, although the District of New Hampshire did not issue a final ruling on whether a close friendship could constitute a sufficiently close relationship to state a third-party retaliation claim under Title VII, the court's ruling indicates that if the facts as pled can be proven then it would allow Mulcahey's third-party retaliation claim, based upon her close friendship with Wilkins, to go to the jury. This interpretation of the scope of third-party retaliation claims significantly broadens the class of potential litigants from individuals who engage in protected activity to, not just individuals with close-familial or marital ties to an individual who engaged in protected activity, but also individuals who have developed a close personal friendship with an individual who engaged in protected activity.
Employer Takeaway: As a practical matter, employers should continue to train supervisors and employees on their antidiscrimination, harassment and retaliation policies, as well as the laws prohibiting same. In general, it is easier for an employee to prove a retaliation claim than it is to prove harassment or discrimination, therefore employers must be vigilant in ensuring that employees who report alleged misconduct, employees who assist others in reporting alleged misconduct, and now employees who have close ties to employees who report alleged misconduct, are not subject to retaliation. Supervisors and employees must be made aware of the prohibition against retaliation and the disciplinary consequences that might result. Employers should also carefully document the reasons for employee terminations, so that the terminated employee cannot later claim that he or she was terminated in retaliation for another employee's protected activity, or for any other unlawful reason.
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