No. 07-5040 ____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ____________________________________________ ERIC L. THOMPSON, Plaintiff-Appellant, v. NORTH AMERICAN STAINLESS, LP, Defendant-Appellee. ___________________________________________________ On Appeal from the United States District Court for the Eastern District of Kentucky Hon. Karen K. Caldwell, Judge ___________________________________________________ BRIEF OF THE UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF THOMPSON AND FOR REVERSAL ___________________________________________________ RONALD S. COOPER U.S. EQUAL EMPLOYMENT General Counsel OPPORTUNITY COMMISSION Office of General Counsel LORRAINE C. DAVIS 1801 L Street, NW, Room 7034 Acting Associate General Counsel Washington, DC 20507 (202) 663-4055 CAROLYN L. WHEELER gail.coleman@eeoc.gov Assistant General Counsel GAIL S. COLEMAN Attorney TABLE OF CONTENTS Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . .ii Statement of Interest. . . . . . . . . . . . . . . . . . . . . . . . 1 Statement of the Issue . . . . . . . . . . . . . . . . . . . . . . . 1 Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . 1 A. Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . 1 B. District Court Decision . . . . . . . . . . . . . . . . . . . . 2 Summary of Argument. . . . . . . . . . . . . . . . . . . . . . . . . 3 Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Title VII prohibits employers from terminating one individual in retaliation for the protected activities of another individual 4 A. Title VII's plain language is ambiguous because the statute does not directly address third-party retaliation. . . . . . . 4 B. Title VII's anti-retaliation provision must be interpreted broadly to fulfill its purpose of "maintaining unfettered access to statutory remedial mechanisms" . . . . . . . . . . . . . . . 7 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12 Certificate of Service TABLE OF AUTHORITIES Cases Barnhart v. Peabody Coal Co., 537 U.S. 149 (2003). . . . . . . . .5, 7 Barnhart v. Walton, 535 U.S. 212 (2002). . . . . . . . . . . . . . . 5 Bell v. Safety Grooving & Grinding, LP, 107 Fed. Appx. 607 (6th Cir. 2004) (unpublished). . . . . . . . . . . . . . . . . . . .10 Burlington N. & Santa Fe Ry. v. White, 126 S. Ct. 2405 (2006). 2-3, 9 Chevron, USA v. Echazabel, 536 U.S. 73 (2002). . . . . . . . . . . . 5 Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978). . . . . . . 9 DeMedina v. Reinhardt, 444 F. Supp. 573 (D.D.C. 1978). . . . . . . . 6 EEOC v. Associated Dry Goods Corp., 449 U.S. 590 (1981). . . . . . . 9 EEOC v. Ohio Edison, 7 F.3d 541 (6th Cir. 1993). . . . . . . .6, 9, 10 EEOC v. Wilson Metal Casket Co., 24 F.3d 836 (6th Cir. 1994) . . . . 8 Fogelman v. Mercy Hosp., Inc., 283 F.3d 561 (3d Cir. 2002) . . . . . 6 Holt v. JTM Indus., 89 F.3d 1224 (5th Cir. 1996) . . . . . . .6, 7, 10 Johnson v. Univ. of Cincinnati, 215 F.3d 561 (6th Cir. 2000) . . . . 8 McDonnell v. Cisneros, 84 F.3d 256 (7th Cir. 1996) . . . . . . . . . 7 Robinson v. Shell Oil Co., 519 U.S. 337 (1997) . . . . . . . . 7, 8, 9 Sidney Coal Co. v. Social Security Admin., 427 F.3d 336 (6th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . .5 Smith v. Riceland Foods, Inc., 151 F.3d 813 (8th Cir. 1998) . . . . .6 Teatro v. Elliot Popham Pontiac, 173 F.3d 988 (6th Cir. 1999) . . . .8 Statutes and Rules Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. . . . . . . . . . . . . . . . . . . . 1 § 2000e-2(a). . . . . . . . . . . . . . . . . . . . . . . . 2, 10 § 2000e-3(a). . . . . . . . . . . . . . . . . . . . . . . . 4, 10 § 2000e-5(2). . . . . . . . . . . . . . . . . . . . . . . . . . 8 Fed. R. App. P. 29(a). . . . . . . . . . . . . . . . . . . . . . . . 1 Other Authority EEOC Compliance Manual § 8, Retaliation (May 20, 1998), available at http://www.eeoc.gov/policy/docs/retal.html. . . . 10 STATEMENT OF INTEREST The Equal Employment Opportunity Commission ("EEOC") is charged by Congress with interpreting, administering, and enforcing Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. This case raises an important and recurring issue related to the scope of Title VII's prohibition against retaliation. Given the importance of this issue to effective enforcement of Title VII, the EEOC offers its views to the Court. The EEOC files this brief pursuant to Rule 29(a) of the Federal Rules of Appellate Procedure. STATEMENT OF THE ISSUE Does Title VII prohibit an employer from terminating one individual in retaliation for the protected activities of another individual? STATEMENT OF THE CASE This is an appeal from an award of summary judgment in favor of North American. A. Statement of the Facts<1> Eric Thompson and his fiancée both worked for North American Stainless. In September 2002, Thompson's fiancée (now his wife) filed a charge with the EEOC alleging that North American had discriminated against her based on her sex. The EEOC notified North American of this charge in February 2003. Thompson alleges that North American then terminated him in retaliation for his fiancée's charge. B. District Court Decision The district court granted summary judgment to North American on the ground that Title VII does not prohibit third-party retaliation.<2> (R.27, Slip Op. at 8-9.) The court acknowledged that "retaliating against a spouse or close associate of an employee will deter the employee from engaging in protected activity just as much as if the employee were himself retaliated against." (Id.) Nevertheless, the court interpreted the plain language of Title VII "not [to] permit a retaliation claim by a plaintiff who did not himself engage in protected activity." (Id. at 6.) Although the court acknowledged that the EEOC and several courts have interpreted Title VII to permit third-party retaliation claims, (id. at 5), and also acknowledged dicta from this Court approving of this broader interpretation, (id. at 6-8), the district court said that in the absence of controlling Sixth Circuit law, it was bound by the "unambiguous language of the statute." (Id. at 9.) Thompson filed a timely motion for reconsideration in light of Burlington Northern & Santa Fe Railway v. White, 126 S. Ct. 2405 (2006), in which the Supreme Court held that Title VII's anti-retaliation provision must be interpreted broadly. (R.29, Motion.) Noting that Burlington Northern did not address the issue of third-party retaliation, the district court denied Thompson's motion. (R.31, Opinion at 3.) SUMMARY OF ARGUMENT Contrary to the district court's holding, Title VII prohibits employers from retaliating against one employee because of another employee's protected activity. The district court's holding ascribes unwarranted meaning to statutory silence. Moreover, as even the district court acknowledges, the indirect retaliation that its holding permits can be just as chilling as direct retaliation to the exercise of protected rights. The Supreme Court has instructed courts to interpret Title VII's anti- retaliation provision broadly in order to achieve its purpose of encouraging victims of discrimination to come forward. This Court has already interpreted the anti-retaliation provision, in dicta, to prohibit third-party retaliation. Because that interpretation is most consistent with the statutory context and intent, as well as with the Supreme Court's analysis of Title VII, the Court should now hold that Title VII renders third-party retaliation illegal. ARGUMENT Title VII prohibits employers from terminating one individual in retaliation for the protected activity of another individual. The district court read too much into the "plain language" of Title VII. Viewed in context, the anti-retaliation provision prohibits not only direct retaliation, but indirect retaliation as well. A. Title VII's plain language is ambiguous because the statute does not directly address third-party retaliation. In holding that the plain language of Title VII bars third-party retaliation claims, the district court read more into the language than the words literally say. The anti-retaliation provision provides: It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter. 42 U.S.C. § 2000e-3(a). Read literally, Title VII says nothing at all about third-party retaliation. The anti-retaliation provision says that an employer may not retaliate against an employee because of that employee's own protected activity. It is silent, however, as to whether an employer may discriminate against a second employee because of the first employee's actions. As the Supreme Court has observed, statutory silence "normally creates ambiguity. It does not resolve it." Barnhart v. Walton, 535 U.S. 212, 218 (2002). When faced with a statute that expressly prohibits one type of conduct but is silent about whether it also prohibits other, similar conduct, a court must determine whether the statute's silence about the similar conduct was deliberate or whether it was merely due to oversight. See Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003) ("We do not read the enumeration of one case to exclude another unless it is fair to suppose that Congress considered the unnamed possibility and meant to say no to it."). Unless Congress considered the "unnamed possibility" and deliberately chose not to mention it, statutory silence is not enough to prevent unnamed conduct from falling within the scope of statutory coverage. See Chevron, USA v. Echazabel, 536 U.S. 73, 87 (2002) (upholding EEOC regulation authorizing employer to refuse to hire individual whose disability may endanger his own health at work, although Americans with Disabilities Act expressly authorizes such a defense only if individual may endanger health of others); Sidney Coal Co. v. Social Security Admin., 427 F.3d 336, 348 (6th Cir. 2005) (the Coal Act's "explicit reference to two types of employment need not preclude adding another to the list"). No legislative history suggests that Congress intentionally excluded third- party retaliation from the scope of Title VII's prohibitions. The cases holding otherwise have generally been forced to acknowledge this fact, although they have strained to imagine reasons that could justify such a deliberate exclusion. See Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 569 (3d Cir. 2002) ("while we do not find them particularly convincing, there are at least plausible policy reasons why Congress might have intended to exclude third-party retaliation claims"); Smith v. Riceland Foods, Inc., 151 F.3d 813, 819 (8th Cir. 1998) ("Title VII already offers broad protection to [victims of third-party retaliation]" by prohibiting retaliation based on their own protected activities); Holt v. JTM Indus., 89 F.3d 1224, 1226 (5th Cir. 1996) (rule against third-party retaliation "will rarely be necessary to protect employee spouses from retaliation"). Judicially imagined reasons, however, cannot substitute for congressional consideration. This Court has already acknowledged that Congress most likely failed to mention third-party retaliation only because it never considered the possibility of such an occurrence. See EEOC v. Ohio Edison, 7 F.3d 541, 543 (6th Cir. 1993) ("‘the language of [the anti-retaliation] section indicates that Congress did not expressly consider the possibility of third-party reprisals – i.e., discrimination against one person because of a friend's or relative's protected activities'") (quoting DeMedina v. Reinhardt, 444 F. Supp. 573, 580-81 (D.D.C. 1978)); see also McDonnell v. Cisneros, 84 F.3d 256, 262 (7th Cir. 1996) (the possibility of collective punishment "is unlikely to have been in the forefront of congressional thinking when the retaliation provision was drafted"); Holt, 89 F.3d at 1232 (Dennis, J., dissenting) ("Situations in which spouses or other related parties work for the same employer do not occur with great frequency."). In light of Congress's failure to consider the possibility of third-party retaliation, Title VII's express prohibition only of direct retaliation does not preclude an implicit prohibition of indirect retaliation as well. Here, as in other cases where Congress's silence is due solely to oversight, "the better inference is that what we face . . . is nothing more than a case unprovided for." Barnhardt v. Peabody Coal, 537 U.S. at 169. Because Congress's oversight renders the language of Title VII's anti-retaliation provision ambiguous, the Court must look to "the specific context in which that language is used [ ] and the broader context of the statute as a whole" in order to determine its meaning. Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997). B. Title VII's anti-retaliation provision must be interpreted broadly to fulfill its purpose of "maintaining unfettered access to statutory remedial mechanisms." Examined in context, Title VII's anti-retaliation provision demands an expansive reading that prohibits not only direct retaliation, but third-party retaliation as well. Both procedurally and substantively, Title VII reaches beyond the particular relationship of one employee to his or her employer. Procedurally, Title VII permits one employee to file a charge on another's behalf. 42 U.S.C. § 2000e-5(2). The statute also permits employees who have not filed charges to pursue recovery by relying on the charges of other employees alleging similar claims. EEOC v. Wilson Metal Casket Co., 24 F.3d 836, 840 (6th Cir. 1994). Substantively, Title VII protects third parties who have suffered harm but have not been discriminated against because of their own protected characteristic. See Teatro v. Elliot Popham Pontiac, 173 F.3d 988, 994 (6th Cir. 1999) (granting Title VII protection to a white employee who was discharged because his child was biracial). In an observation freighted with significance for the issue of third- party retaliation, this Court has observed that "‘Title VII [was designed] to protect individuals who are the victims of discriminatory animus towards third persons with whom the individuals associate.'" Johnson v. Univ. of Cincinnati, 215 F.3d 561, 574 (6th Cir. 2000) (quoting Teatro, 173 F.3d at 994). As broad as the scope is of Title VII's anti-discrimination provisions, the scope of its anti-retaliation provision is even broader. Recognizing that the "primary purpose" of the anti-retaliation provision is "maintaining unfettered access to statutory remedial mechanisms," Robinson, 519 U.S. at 346, courts routinely interpret the provision so as to give maximum effect to its prohibitions. See Burlington N., 126 S. Ct. at 2411 (interpreting Title VII to forbid not only retaliatory conduct that is related to employment, but also retaliatory conduct that is unrelated to employment); Robinson, 519 U.S. at 345 (interpreting Title VII to prohibit retaliation against "former employees" although statute only mentions "employees"); Ohio Edison, 7 F.3d at 545-46 (interpreting Title VII to prohibit retaliation against one employee because another employee protested discrimination on his behalf). A broad interpretation of the anti-retaliation provision is necessary for Title VII to function correctly. The statute's anti-discrimination provisions, which seek to eradicate workplace discrimination on the basis of race, color, religion, sex, or national origin, depend upon the cooperation of employees to achieve their goals. Burlington N., 126 S. Ct. at 2414. Anything that deters employees from coming forward to challenge discrimination hampers the enforcement that Congress desired. See EEOC v. Associated Dry Goods Corp., 449 U.S. 590, 602 (1981) (characterizing Title VII charging parties as "‘private attorney[s] general,' whose role in enforcing the ban on discrimination is parallel to that of the [EEOC] itself") (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978)). The district court in the instant case correctly recognized the chilling effect that third-party retaliation could have upon an employee's exercise of rights protected by Title VII. (See R.27, Slip Op. at 8-9.) As the EEOC has observed, a wife would certainly think twice before filing an EEOC charge if she knew that her employer would retaliate by terminating her husband, and a son would think twice before complaining about discrimination if he knew that his employer would retaliate against his father. See EEOC Compliance Manual §§ 8-II(B)(3)(c), 8- II(C)(3), Retaliation (May 20, 1998), available at http://www.eeoc.gov/policy/ docs/retal.html. An employer could openly – and legally – threaten such retaliation if the district court's interpretation of Title VII is upheld. See Holt, 89 F.3d at 1233 (Dennis, J., dissenting) ("To condone such retaliation . . . elevates form over substance and permits employers to evade the reach of the statute by making relatives or friends of complaining parties the ‘whipping boys' for the protected conduct of others."). This Court has already recognized in dicta that third-party retaliation should be illegal. See Ohio Edison, 7 F.3d at 544 ("We agree with the reasoning of the DeMedina court that a plaintiff's allegation of reprisal for a relative's antidiscrimination activities states a claim upon which relief can be granted under Title VII."). Notwithstanding the district court's claim to the contrary, (R.27, Slip Op. at 8), the Court did not later back away from that view in Bell v. Safety Grooving & Grinding, LP, 107 Fed. Appx. 607 (6th Cir. 2004) (unpublished). The Court in Bell was concerned with whether the plaintiff could state a third-party discrimination claim under 42 U.S.C. § 2000e-2(a), not with whether he could state a third-party retaliation claim under 42 U.S.C. § 2000e-3(a). This Court's conclusions about the merits of a third-party retaliation claim remain intact. The EEOC respectfully suggests that it is now time for the Court to elevate its dicta on this point into binding precedent. CONCLUSION Only by prohibiting third-party retaliation can Title VII effectively encourage the exercise of protected rights. Because the statutory language does not preclude an interpretation that prohibits third-party retaliation, and because the statute's context and purpose demand such an interpretation, this Court should hold that third-party retaliation is illegal. For the foregoing reasons, the EEOC respectfully requests that this Court reverse the award of summary judgment. Respectfully submitted, RONALD S. COOPER General Counsel LORRAINE C. DAVIS Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel __________________________________ GAIL S. COLEMAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW, Room 7034 Washington, DC 20507 (202) 663-4055 gail.coleman@eeoc.gov CERTIFICATE OF SERVICE I, Gail S. Coleman, hereby certify that I filed one original and six copies of the foregoing amicus brief with the Court by first-class mail, postage pre-paid, on this 7th day of March, 2007. I further certify that I served two paper copies of the foregoing amicus brief this 7th day of March, 2007, by first-class mail, postage pre-paid, to the following counsel of record: David O'Brien Suetholz Segal, Lindsay & James 515 Park Avenue Louisville, KY 40208 Leigh G. Latherow Van Antwerp, Monge, Jones & Edwards 1544 Winchester Avenue, Fifth Floor P.O. Box 1111 Ashland, KY 41105-1111 __________________________________ GAIL S. COLEMAN Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW, Room 7034 Washington, DC 20507 (202) 663-4055 gail.coleman@eeoc.gov *********************************************************************** <> <1> The facts in this brief are taken directly from the district court’s opinion. (R.27, Slip Op. at 1.) The EEOC leaves it to the parties, who are most familiar with the record, to debate whether the district court accurately recited the facts. The purpose of the EEOC’s participation is solely to address the district court’s error of law. <2> The district court also held that Thompson could not state a discrimination claim under 42 U.S.C. § 2000e-2(a). (R.27, Slip Op. at 4.)