Friday, February 2, 2018

Fulton v. Mississippi State University: An EEO Brain Teaser About Third-Party Retaliation

For a change of pace, I have an EEO brain teaser! Under the anti-retaliation provision of Title VII, it's unlawful for an employer to retaliate against someone for complaining about discrimination. Suppose Amanda complains about sexual harassment by her supervisor, Charlie, and then, to get back at Amanda, Charlie fires Amanda's friend Brenda. Under these circumstances, who has been subjected to unlawful retaliation? 

Despite the fact that Brenda is the one who was fired, it's Amanda who was subjected to retaliation. Here's why. Under the anti-retaliation provision, it's unlawful to take an adverse action against someone who has complained about discrimination, filed a lawsuit, or engaged in other protected activity. Since Brenda did not complain about discrimination, the employer could not possibly have retaliated against her. If the employer fired Brenda to get back at Amanda, then Amanda's the one who was retaliated against.

If you guessed Brenda, though, you're not alone.

In Fulton v. Mississippi State University, No. No. l:17-cv-70-GHD-DAS (N.D. Miss. Jan. 31, 2018), Judge Glen Davidson made the same mistake. In that case, Davidson rejected the defendant's contention that Naomi Fulton was not subjected to retaliation when she was allegedly transferred because of her association with a coworker who had complained about sexual harassment. Davidson reasoned that Fulton's association with the coworker constituted protected activity, and therefore, it was unlawful for the employer to have retaliated against her for that association. As with the Amanda hypothetical, the alleged retaliation here was not against Fulton but against her coworker, the individual who complained about sexual harassment.

On the other hand, under Title VII, you may be able to bring a retaliation claim even if you weren't the one subjected to retaliation. In Thompson v. North American Stainless, L.P., 562 U.S. 170 (2011), the Supreme Court held that Eric Thompson could bring a retaliation claim when he was allegedly fired in order to retaliate against his fiancĂ©e, Miriam Regalado, who had filed a sex discrimination charge against their mutual employer. Although Regalado is the one who was subjected to retaliation, Thompson could nonetheless bring a claim to recover because of the harm he had suffered resulting from the retaliation against her. 

Like Thompson, even if Fulton did not allege that she had engaged in protected activity, she may be able to bring a retaliation claim if she was harmed by the retaliation against her coworker. 

Although it may look as if this is a distinction without a difference, there are some important implications.

For one thing, when an employer retaliates against an employee by taking an action against a third party, then both the retaliation victim and the third party can bring retaliation claims. Thus, Brenda, Regalado, and Fulton's coworker all could bring retaliation claims.

In addition, to establish retaliation, a claimant must show that the employer took a materially adverse action. This means that the action would have been reasonably likely to have deterred protected activity by the person who was subjected to the retaliation. For example, if an employer retaliates against someone by firing his spouse, that is more likely to be materially adverse than if an employer retaliates against someone by taking a minor action against a mere acquaintance. Moreover, if an employer takes an action directly against an employee who complained about discrimination, that action is more likely to be materially adverse than if the employer retaliates against the employee by taking the same action against a third party. Thus, if an employer retaliates against an employee by denying her an assignment, that action might be materially adverse even if it would not be materially adverse if the employer had retaliated against the employee by denying the same assignment to the employee's friend. 

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.