Thompson v. North American Stainless, LP , 567 F.3d 804 ( 2009 )

ROGERS, Circuit Judge,

concurring.

I concur in the result but my reasoning differs somewhat from that of the majority.

In my view, “discrimination against” an employee may include hurting that employee’s relative or friend, and imposing such a hurt would be unlawful if it is imposed “because [the employee] has opposed any practice made an unlawful employment practice by this subchapter, or because [the employee] 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). At the very least, a contrary reading is neither plain, nor unambiguous. Indeed, as the majority recognizes, “[a]ll of the parties in this case agreed at oral argument that if Miriam Regalado believed that she was the intended target of retaliation for engaging in her protected activity, she could have filed a retaliation action pursuant to § 704(a) and, under Burlington Northern [& Santa Fe Railway. Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) ], defendant’s termination of Thompson potentially could be deemed an ‘adverse employment action’ against her.” Maj. op. at 816 n. 10. Such a conclusion would require that the retaliatory termination of Thompson was “unlawful” under § 2000e-3(a).

In other words, § 2000e-3(a) dictates what practices amount to unlawful retaliation, not who may sue. And when the person bringing suit is the employee who has sufficiently opposed an unlawful employment practice, § 2000e-3(a) may well render unlawful the firing of the employee’s spouse.

The question of who may sue is simply not addressed by § 2000e-3(a). Rather, the procedural provisions of Title VII provide that “person[s] claiming to be aggrieved” and “person[s] aggrieved” may sue for Title VII violations. §§ 2000e-5(b), -5(e)(1). While these terms should be interpreted broadly, they should not be interpreted to extend to every person who has something to gain by challenging the employer’s unlawful action.¹ If interpreted that broadly, all sorts of persons who are not the intended beneficiaries of Title VII’s protections could sue. For instance, someone interested in the financial health of a company (such as a shareholder or partner) could challenge the firing of a particularly productive employee. Of a dismissed employee’s creditor could challenge the dismissal even when the employee does not want to. To avoid such results obviously not intended by Congress, “persons aggrieved” must be interpreted to include those persons who are the intended beneficiaries of the protection enacted in the substantive provision. See Kowalski v. Tesmer, 543 U.S. 125, 129, 125 S.Ct. 564, 160 L.Ed.2d 519 (2004).

The intended beneficiaries of the anti-retaliation provision of § 2000e-3(a) are obviously the persons retaliated against, not persons who are incidentally hurt by the retaliation. It follows that in the retaliation context “persons aggrieved” must be interpreted to be the persons retaliated against. While that might not be the only interpretation of “person aggrieved,” it is doubtless the best interpretation. The person bringing the claim to the EEOC, and subsequently to court, should be the person alleging that the harm was directed at him or her. That will focus the inquiry where it belongs: on the allegedly unlawful aspect of the employer’s retaliatory action, and the extent to which the action is directed against (and harmful to) the protected person.

The reasoning and precedent relied upon by the majority in Part IV generally support this conclusion as well. My difference with the majority is founded on a concern that by relying on the language of the provision stating what is unlawful, rather than on the language of the provision regarding who can sue, the holding may be misinterpreted to preclude Title VII claims by protected persons, like Regalado, for retaliation in the form of harm imposed on people that (the employer knows) the protected persons care about.

1 . Language in cases like Senter v. General Motors Corp., 532 F.2d 511 (6th Cir.1976), and EEOC v. Bailey Co., 563 F.2d 439 (6th Cir. 1977), that standing under Title VII was intended to be as broad as Article III permits, must be taken in context.

Senter involved a challenge to standing to maintain a class action, and we explicitly refrained from reaching a third-party standing issue by noting "that the interests asserted by Appellant in his complaint unquestionably fall within the parameters of Title VIL” 532 F.2d at 517 n. 6.

Bailey Co. dealt with whether a white woman could challenge her employer's discrimination against blacks. 563 F.2d at 442. We held that she could, not because a person unprotected by Title VII could sue, but because a white woman was protected by virtue of her interest in an integrated workplace. Id. at 452. This conclusion was supported by the Supreme Court's Trafficante decision, which held that a white tenant had standing to challenge discrimination against blacks by an apartment complex. Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972). Indeed, we stated that were it not for Trafficante, we would be inclined to hold that the plaintiff lacked standing. Bailey Co., 563 F.2d at 452. As one reason for saying Trafficante made a difference, we noted that "the EEOC has interpreted Title VII to confer upon every employee the right to a working environment free from unlawful employment discrimination. Under the EEOC’s interpretation of Title VII, whites are aggrieved by discrimination against blacks at their place of employment and have standing to file charges with the EEOC and sue in court.” Id. at 454. Neither Bailey Co. nor Trafficante can properly be read to say that any person affected by the imposition of retaliation should be deemed sufficiently aggrieved to bring a Title VII claim. While Title VII can be interpreted to protect the right of people to associate with people of different races, it can hardly be interpreted to protect the right of people to associate with, people who have been retaliated against.