Third Party Retaliation

Suppose both husband and wife, Mr. and Mrs. Johnson, have worked for Democan in the marketing department for 15 years. The couple loves their job because they can help their pastor with his re-election campaign. For most of their career, the couple has reported to the marketing director, Joe Abbott. Mr. Abbott retired seven months ago. Democan then hired Donald Paxton as the new Marketing Director.

Since his first day, Mr. Paxton has had a crush on Mrs. Johnson. Mr. Paxton waits until Mrs. Johnson is alone then he approaches her in the backroom and begins to caress her body. Mrs. Johnson tells Mr. Paxton to stop as his actions were unwelcomed and made her uncomfortable. Mr. Paxton continued with his actions, and Mrs. Johnson continued to ask him to stop. Mrs. Johnson had enough, so she engaged in protected activity by filing multiple sexual harassment complaints with human resources. Human resources did nothing. By this point, Mrs. Johnson feared going to work, so she decided that her only option was to file a charge of discrimination (“charge”) with United States Equal Employment Opportunity Commission (EEOC). After she filed with the EEOC, she notified human resources and Mr. Paxton that she formally filed a charge with EEOC.

Mr. Paxton called Mr. Johnson into his office and asked Mr. Johnson if he would instruct his wife to withdraw her charge of discrimination. Mr. Johnson refused. The following day, Mr. Paxton wrote up both Mr. and Mrs. Johnson for insubordination. They asked Mr. Paxton how they were insubordinate, and Mr. Paxton had no response. The following week, Mr. Paxton terminated Mr. Johnson for eating chips at his desk. Mr. Johnson does not believe Mr. Paxton terminated him for eating chips because his other colleagues were eating chips at their desk as well. Mr. Johnson believes that he was terminated because his wife filed a charge.

The obvious question is, does Mr. Johnson have an actionable claim against Democan? The answer is likely yes. The Supreme Court has ruled that third parties may have standing to bring a retaliation claim if they are in the “zone of interest” that the anti-retaliation provision intended to protect.

In the above scenario, it is clear that Mr. Johnson did not engage in protected activity, which is generally what we look for in retaliation cases. However, it can be argued that Mr. Paxton terminated Mr. Johnson to punish Mrs. Johnson for her protected activity. If this is true, Mr. Johnson is in the zone of interest and has a retaliation claim under Title VII. Mr. Johnson now can file his own charge with the EEOC and seek damages.

All third-party retaliation cases are not straightforward and can be fact intensive. Your employer should not be able to escape liability by retaliating against you for your loved one’s protected activity. If you believe that you have been retaliated against because of your relationship with someone who has reported discrimination, please schedule a consultation with me.


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