INTRODUCTION :: “To retaliate against a man by hurting a member of his family is an ancient method of revenge, and is not unknown in the field of labor relations.” NLRB v. Advertisers Manufacturing Co.
Individuals who complain about workplace discrimination are frequently labeled as troublemakers by those in positions of authority within the organization. As troublemakers, such individuals potentially face various forms of retaliation. Eugene Mestas was one such troublemaker. After leaving his employment, Mestas hired an attorney, who sent a letter to Mestas’s former employer, informing the employer of Mestas’s intent to file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). The employer was somewhat limited in its ability to retaliate against Mestas, a former employee. However, Mestas’s fiance, Revonda Mickle, remained an employee. Mickle was on maternity leave after having given birth to Mestas’s child when Mestas’s attorney contacted the employer about Mestas’s impending EEOC charge. When Mickle inquired about ending her leave early and returning to work, she was informed that her services were no longer needed.
Section 704(a) of Title VII of the Civil Rights Act of 1964 (Title VII) prohibits an employer from retaliating against an employee who opposes an employer’s discriminatory conduct or who testifies, assists, or participates in any manner in an investigation related to a charge of discrimination. Despite the protection afforded by Title VII, situations such as Mickle’s, in which an employer targets a friend, relative, or other associate to retaliate against a workplace troublemaker, are surprisingly common in federal decisions. These are cases of “pure” third-party retaliation, in which a coworker-who has committed no offense other than having a relationship with the workplace troublemaker-is the victim of the employer’s wrath. The courts have split on the question whether § 704(a) of Title VII prohibits an employer from discriminating against a third party in retaliation for the protected activities of another individual, with a clear majority concluding that no such cause of action exists.
As these cases of pure third-party retaliation make clear, it may be dangerous to an individual’s employment prospects simply to associate with a workplace troublemaker. However, it may be equally dangerous to actually assist a troublemaker who files an internal complaint of discrimination with the employer prior to filing a formal discrimination charge with the EEOC. The federal courts have consistently held that employees who participate in an employer’s internal investigation process are entitled to significantly less protection from retaliation than employees who participate in formal EEOC proceedings or lawsuits. For the same reason, it may be hazardous to an individual’s employment prospects for the individual to seek to protect coworkers from discrimination by complaining internally about harassment directed at a coworker or about a hostile work environment that affects other employees, or by participating in an employer’s internal investigation into such conduct.
Although retaliation claims have reportedly doubled in the last decade and now comprise 25% of all EEOC charges, Title VII’s anti-retaliation provision has received far less attention in legal scholarship than has the statute’s substantive anti-discrimination provision. The scant discussion of the courts’ treatment of § 704(a) has typically focused on the limited protection that the majority interpretations have afforded to those who complain about workplace discrimination. The courts’ critics assert that this limited protection diminishes the ability of Title VII to carry out its mission of combating workplace discrimination. This Article eventually arrives at a similar conclusion, but it reaches that point through a somewhat different route. This Article focuses on the effect that the majority interpretations of Title VII’s anti- retaliation provision may have on an employee’s right of workplace association and ultimately how this effect impacts the ability of § 704(a) to combat discrimination. In other words, this Article focuses not on the workplace troublemaker but on the troublemaker’s friend.
In analyzing whether to permit retaliation claims based on an individual’s association with or assistance to a coworker who has possibly been the victim of workplace discrimination, the only policy value courts typically discuss is the goal of maintaining access to the statute’s remedial mechanisms. While courts occasionally raise questions about the fundamental fairness of permitting an employer to take adverse action against an associate of a workplace troublemaker, the primary focus is usually on the effect that allowing such employer behavior will have on Title VII’s enforcement mechanism. It is beyond question that maintaining access to such mechanisms is the primary purpose of anti-retaliation provisions. However, this Article argues that a related value is implicated in these cases and that this value routinely goes unmentioned: encouraging (or, at a bare minimum, not discouraging) employees to associate with one another.
To be sure, no “right” of association is explicitly mentioned in Title VII. But as this Article argues, deeply embedded in the fabric of federal employment law is the principle that an employer may not interfere with the ability of its employees to associate with one another to discuss workplace matters or provide mutual aid or protection. Moreover, this Article argues that there is an inherent value in employee interaction and solidarity, particularly with regard to their potential to combat workplace discrimination. Indeed, just as Title VII’s prohibition on discrimination would be an empty shell without the protection afforded by its anti-discrimination provision, § 704(a)’s protection from retaliation would be an empty promise without the ability and willingness of coworkers to assist and associate with whomever they choose, including workplace troublemakers, without fear of employer reprisal.
This Article analyzes these types of cases within the broader context of an employee’s right to associate freely with coworkers. It argues that in addition to the goal of permitting unfettered access to remedial mechanisms, another goal of anti-retaliation provisions in employment discrimination statutes should be to encourage workers to meet and discuss management-employee relations. Therefore, to the extent possible, courts should interpret anti-retaliation provisions so as to encourage, or at least not discourage, employees to associate with and assist one another. Part II examines the varying conceptions of the “right” of association in the workplace, including in the public employment setting, the labor law context, and in employment discrimination statutes. In Part III, this Article discusses in greater detail the anti-retaliation provisions found in employment discrimination statutes and the tendency of courts to interpret the provisions in a way that discourages employee interaction. Part IV discusses the ways in which the majority interpretations of § 704(a) hinder the fight against discrimination once such discrimination has occurred and how encouraging greater employee interaction may help prevent hostile work environments from developing in the first place. Finally, Part V advances several arguments in favor of a broader interpretation of § 704(a) that would encourage greater employee interaction, including an approach that utilizes the U.S. Supreme Court’s recent decision in Burlington Northern & Santa Fe Railway Co. v. White.
April 2014, Vol. 66, No. 2
Sergio J. Campos, Class Actions and Justiciability
Andrew Guthrie Ferguson, Constitutional Culpability: Questioning the New Exclusionary Rules
Alberto R. Gonzales & Amy L. Moore, No Right at All: Putting Consular Notification in its Rightful Place After Medellin
Kevin J. Lynch, The Lock-in Effect of Preliminary Injunctions
Anne R. Traum, Using Outcomes to Reframe Guilty Plea Adjudication
Katrina Wyman & Nicolas Williams, Migrating Boundaries
Stephen E. Ludovici, Rule 60(b)(4): When the Courts of Limited Jurisdiction Yield to Finality