Sixth Circuit Rules Third Party Must Engage
In Protected Activity To Bring Title VII Retaliation Claim

In Thompson v. North American Stainless, LP, 567 F.3d 804 (6th Cir. 2009) (en banc), the full Sixth Circuit held that a Title VII retaliation claim by a third-party required actual engagement in protected activity by the third-party.  Plaintiff, Eric Thompson, sued North American for violation of Title VII, alleging retaliatory discharge based on the protected activity of Thompson's fiancée, a co-worker.  The district court granted the employer's motion for summary judgment.

On appeal, the Sixth Circuit described the sole issue as whether section 704(a) of Title VII created a cause of action for third-party retaliation for persons who did not engage in protected activity.  Because Thompson did not allege he engaged in any statutorily protected activity (i.e., he did not oppose an unlawful employment practice, make a charge, or testify, assist, or participate in an investigation), the court found by the plain language of Title VII that Thompson was not included in the class of persons for whom Congress created a retaliation cause of action.  In so ruling, the Sixth Circuit joined the Third, Fifth, and Eighth Circuit Courts of Appeals.  The court distinguished the Supreme Court’s recent decision in Crawford v. Metro Gov't of Nashville and Davidson County, 129 S. Ct. 846 (2009) – which abrogated the Sixth Circuit's view that Title VII’s opposition clause required active, consistent opposing behavior and that an employee must instigate or initiate a complaint – by noting that Crawford involved involuntary testimony during an internal investigation while Thompson did not personally engage in any protected activity or opposition to discrimination.

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