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Quinnipiac Law Review


Employees, Anti-Retaliation, Title VII


This article joins the discussion of when employees should be protected against third-party retaliation under Title VII of the Civil Rights Act of 1964 and analogously worded statutes. In Thompson v. N. Am. Stainless, LP., 131 S.Ct. 863 (2011), the U.S. Supreme Court held that third-party retaliation was cognizable under Title VII, an issue that had divided the lower courts for decades. Prior to Thompson, lower courts that recognized the viability of such claims often imposed limits on the classes of relationships for which third-party retaliation was unlawful. For instance, courts often found such claims viable where after an employee complained about discrimination (engaged in “protected activity”), an employer punished that employee’s spouse or other family member as a result. Where the relationship was deemed to be too attenuated (e.g., an amity or professional relationship) protection was uneven at best. This article argues against such a formalistic approach to third-party retaliation. The article argues that an employee should be protected against third-party retaliation whenever there is proof that the employer targeted him or her to get back at a coworker who engaged in protected activity regardless of the relationship between the coworkers — family, friend, cubicle mate or otherwise. It argues for protecting that coworker whenever that individual suffers an adverse action that would have sufficed for an actionable retaliation claim had the employer taken the same action against the employee who engaged in protected activity. Thus, the proposal would bar employers from doing indirectly (to a third party) what they are prohibited from doing directly to the third-party’s associate who engaged in protected activity. The article cogently argues that this approach to analyzing third-party retaliation claims is consistent with Thompson, Title VII’s broadly worded anti-retaliation provision and the purposes that underlie it.