Scope of Retaliation Claims, Family Members?, Quirky Question # 62

Quirky Question # 62:

Your pending question regarding the “temporal proximity” required for retaliation claims is interesting.  I have a slightly different question, also involving retaliation claims.

What is the scope of the protections provided by retaliation provisions.  For example, if one member of a couple, both of whom worked for us, sues us for discrimination in connection with her discharge, could we fire her husband?  We think it would be a weird dynamic to employ the spouse of someone who is suing us.  Similarly, if we terminated an individual and he later sued us for discrimination, could we refuse to hire his adult children if they sought employment with our company?

Dorsey’s Analysis:

You ask an excellent question, which frankly has no clear answer.  The courts that have examined this issue have reached inconsistent results, some finding that taking punitive action toward a family member constitutes impermissible retaliatory conduct and others reaching the opposite conclusion.  So, for now, the answer to your inquiry is that it depends on the jurisdiction in which the claim is brought.  Given that federal circuit courts are among those that have reached inconsistent conclusions on the scope of the retaliation provisions set forth in the anti-discrimination statutes, at some point either Congress or the U.S. Supreme Court will have to reconcile the inconsistent statutory interpretations.

For example, in the recent case of EEOC v. Wal-Mart Stores, Inc., No. 07-CV-0300 (D.N.M. July 28, 2008), the federal District Court addressed a situation where a Wal-Mart employee, Ramona Bradford, filed a charge of discrimination against the company.  During the next five months, Bradford’s two adult children applied for positions with Wal-Mart.  Despite being more qualified than those hired, Wal-Mart rejected each of their applications.  Wal-Mart also offered pretextual reasons for why at least one of these applicants was not hired, telling him that Wal-Mart had a “hiring freeze” notwithstanding the fact that the company hired others at the same time.  Bradford and each of her adult children then alleged retaliation by Wal-Mart.

The question examined by the District Court was whether either of Bradford’s adult children (Robin and John) had engaged in any protected conduct encompassed by the retaliation provision of Title VII.  The statute’s retaliation provision states, “It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment . . . because [the employee/applicant] has opposed any practice made an unlawful employment practice by this Title, or because [the employee/applicant] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this Title.”  Section 2000e-3(a).  Because the court concluded that neither of the Bradford children had “opposed any practice made unlawful” or had otherwise engaged in conduct described in the statutory anti-retaliation provision, the court found that their retaliation claims should be dismissed.

In reaching this conclusion, the District Court observed that it was not obligated to defer to the EEOC’s own interpretation of the statute, as set forth in the EEOC Compliance Manual.  The Manual provides that the retaliation provisions of the federal anti-discrimination extend to individuals “so closely related to or associated with the person exercising his or her statutory rights that [retaliatory conduct] would discourage that person from exercising those rights.”  Nevertheless, the District Court found that given the plain and unambiguous language of the statute, the EEOC’s interpretation was “unpersuasive.”

The District Court opinion (which, whether you agree with it or not, is thoughtful and well-reasoned) noted that there was a split of authority on the scope of the anti-retaliation provisions. At least one federal circuit (6th) has found that the anti-retaliation provisions extend to family members or others closely associated with the person who filed the Charge of Discrimination, whereas other federal circuits (3rd, 5th and 8th) have concluded that the statutory anti-retaliation provisions do not reach these individuals.

The District Court in the Wal-Mart decision also considered the question of whether the party who filed the Charge (Ramona Bradford) had a legitimate retaliation claim against the company.  The court concluded she did since she clearly had engaged in protected conduct (filing a Charge) and penalizing one’s family members for this action could deter the Charging Party (or others similarly situated) from engaging in this type of protected activity.

So, returning to your situation, you could fire the husband of your employee.  In at least some jurisdictions (perhaps most), the retaliation provisions of the federal statutes would not provide him any rights.  If, however, if you were in the Sixth Circuit, or if another court found the Sixth Circuit’s reasoning more persuasive than its opposite counterparts, the husband of your employee would have a legitimate retaliation claim.  The husband also may have claims based on state law anti-retaliation provisions, a subject beyond the scope of this analysis.  Moreover, if the husband of your employee had assisted his wife in some way with regard to her claim of discrimination, and if your company was aware of that fact, he may have directly engaged in protected conduct.

As the Wal-Mart case also illustrates, even if the husband did not have a legitimate claim, your action in terminating him likely will provide his spouse (who already has filed a Charge of Discrimination) with another basis on which to proceed against your company.  As I suggested in my analysis of last week’s retaliation issue, I strongly encourage clients not to convert an infirm underlying discrimination claim into a compelling retaliation claim.  Whereas your company may be well positioned to defeat the wife’s claim of discrimination, your question essentially concedes that you are retaliating against the claimant by firing her husband.  In my view, that would not be the most ethical approach.

Finally, even if the ethical issue does not trouble you, I’m not convinced that your plan makes practical sense.  If you have a capable, qualified employee, who is meeting your legitimate performance expectations, why would you want to fire him even if his spouse was suing you?  I suppose that if you had an extremely small firm, there could be some awkwardness associated with employing the spouse of someone suing you, but for me that would be an insufficient basis on which to discharge someone.  Moreover, you may discover that continuing to employ the husband provides your firm some very compelling evidence that your workplace is not discriminatory.  For example, if the spouses were of approximately the same age, and the wife was suing you for age discrimination, your firm may be able to obtain some persuasive testimony from her comparably-aged husband stating that he has never experienced age discrimination.  Similarly, for example, if the wife claimed gender discrimination, it would be interesting to pose questions to her husband about whether he has ever discriminated against women at your company, or whether he has ever observed discrimination against women.  If he stated that he had not observed such conduct, to some extent, that undermines his wife’s legal theory.  If, in contrast, he states that he has observed such conduct, there could be an interesting series of questions about why he failed to report these problems.  You could inquire, “You knew our company was discriminating against women, you knew your wife was working here, and you said nothing to us to assist our firm to improve our policies and practices?”  Silence, in this context, simply does not make sense.

In short, although your visceral reaction is that it would be “weird” to employ the husband, there well could be strategic advantages to doing so.

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