Associational Retaliation No Longer A Concern

Whether it is family, friendship or romance, there are many types of relationships between employees these days. What if the relationship between two employees meant that the employer could face a retaliation claim for firing John Doe employee after Jane Doe employee filed a sexual discrimination charge with the EEOC, even when John Doe employee had no involvement in Jane Doe employee’s charge?

Until recently, that is just what could happen. Early in 2008, the 6th Circuit permitted an employee to proceed with a retaliation claim by recognizing a claim for associational retaliation. This expanded the class of persons protected from retaliation to include associated third parties.

In the case, a woman filed a sex discrimination charge with the EEOC. Three weeks later, the employer terminated her fiancé who was also an employee.

This month the 6th Circuit reversed its prior holding and rejected the associational retaliation theory.

In its recent decision the court determined that the fiancé had not claimed that he was engaged in any statutorily protected activity, either on his own behalf or on behalf of his fiancé, who filed the charge.

The court found that he was not included in the class of persons for whom Congress created a retaliation cause of action because he personally did not oppose an unlawful employment practice, make a charge, testify, assist, or participate in an investigation. Retaliation now only applies to the primary actor who engaged in the protected activity and not the passive bystander.

While retaliation continues to be a huge risk facing employers, this new decision provides a great sense of relief. Employers are no longer exposed to the potential liability of their actions with regard to employees with close relationships. When it comes to retaliation, employers need only worry about employees who actually engage in their own protected activity.

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