A disappointing decision was released by the 6th Circuit Court of Appeals last week in a Title VII retaliation case. See Thompson v. North American Stainless, LP, No. 07-5040, ___ F.3d ___ (6th Cir. June 5, 2009). 09a0202p-06.pdf

In Thompson, a female employee filed a charge of sex discrimination with the EEOC. Three weeks later the employer fired the female employee’s fiance. The female employee’s fiance alleged he was retaliated against as a result of his fiance’s protected activity.

The 6th Circuit held that even if the employer purposefully retaliated against the employee because of his fiance’s protected activity he could still not state a claim for retaliation under Title VII. In a 9-6 decision by the full 6th Circuit, the 9 judge majority held that Title VII’s anti-retaliation provision only protects those persons who have who have personally engaged in protected activity by opposing a practice, making a charge, or assisting or participating in an investigation.

Thompson is a very unfortunate a decision, which conflicts with other decisions around the country. I understand that the plaintiff is going to file a petition for a writ of certiorari with the U.S. Supreme Court requesting that it hear the case. While it is rare for the U.S. Supreme Court to agree to hear a case, I think the Thompson decision just might catch the Court’s attention. The practical impact of the 6th Circuit’s decision is to sanction retaliation. This can’t seriously be debated. And my personal opinion is that that Congress didn’t intend to permit such retaliation.