"Associational" Discrimination Claims a Growing Concern for Employers
May 2008
Title VII of the federal Civil Rights Act
of 1964 prohibits employers from discriminating against employees based on
race, color, religion, sex, or national origin.
by Paul
J. Siegel, Esq.
Jackson Lewis
LLP
Title VII also prohibits discrimination against employees who have
opposed any practice that is an unlawful employment practice under Title
VII, or who have made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing involving an alleged
violation of Title VII. Employers typically know that they may not take
adverse action based on their employees' protected characteristics, and that
it is impermissible to retaliate against employees based on their own
protected activity.
Recent cases, however, demonstrate that Title VII also may provide an
employee with the right to allege discrimination or retaliation based not
only on his or her own protected characteristics or activity, but also on
the employee's "association" with another individual who comes within a
protected classification or who has engaged in protected activity.
Holcomb v. Iona College
In Holcomb v. Iona College, 06-3815-cv (2d
Cir. Apr. 1, 2008), a Caucasian former assistant basketball coach alleged
that he was terminated because his spouse was African-American. Reversing
the District Court, the U.S. Court of Appeals in New York agreed that this
allegation was sufficient to state a claim of "associational" discrimination
under Title VII. The court stated:
[W]here an employee is subjected to adverse action because an
employer disapproves of interracial association, the employee suffers
discrimination because of the employee's own race.
While acknowledging that the employer asserted that its termination
decision was unrelated to the plaintiff's marriage, the court held that the
plaintiff pointed to sufficient evidence (if credited) of discriminatory
animus, including specific alleged statements of dissatisfaction with the
assistant coach's interracial marriage by the administration, for a jury to
consider whether "Holcomb has established by a preponderance of the evidence
that his termination was the result of racial discrimination." The court's
holding also points out that a plaintiff who brings a claim under Title VII
does not have to show that discrimination was the employer's sole motive in
order to obtain relief.
Thompson v. North American Stainless, L.P.
In a similar vein, in Thompson v. North Am.
Stainless, L.P., 07-5040 (6th Cir. Mar. 31, 2008), the U.S. Court of
Appeals in Cincinnati ruled that a male employee who was terminated
following his coworker fiancée's filing of a discrimination charge with the
Equal Employment Opportunity Commission [EEOC] asserted a prima facie case
of retaliation under Title VII. Allowing that this holding was not
consistent with a "literal reading" of Title VII, the court stated that its
decision nevertheless was consistent with prior guidance from other circuits
and that any contrary finding would "defeat the plain purpose" of the
statute.
Burlington Northern v. White
The court relied on prior decisions which interpreted the protections
afforded by Title VII expansively, including
Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006),
where the Supreme Court set forth a liberal standard for evaluating whether
an employer's action was retaliatory, as well as the EEOC Compliance Manual.
(See related article Supreme Court Loosens
Standard in Retaliation Lawsuits.) The court noted that the EEOC
Compliance Manual:
expressly states that a person claiming retaliation need not be
the one who conducted the protected activity. "Title VII … prohibit[s]
retaliation against someone so closely related
to or associated with the person exercising his or her statutory
rights that it would discourage that person from pursuing those rights.
The court further reasoned that a contrary ruling would:
permit employers to retaliate with impunity for opposition to
unlawful practices, filing EEOC charges or otherwise participating in such
efforts, as long as that retaliation is only directed at family members and
friends, and not the individual conducting the protected activity
and that:
tolerance of third-party reprisals would, no less than the
tolerance of direct reprisals, deter persons from exercising their protected
rights under Title VII.
Conclusion
In evaluating the propriety of disciplinary and/or termination decisions,
human resources professionals and in-house counsel must consider the
potential viability of "associational" discrimination claims that might be
filed as a consequence of their actions. This concern may be particularly
acute where spouses, other relatives, and partners are employed by the same
employer.
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