['Sexual Harassment', 'Discrimination']
['Title VII (The Civil Rights Act of 1964)', 'Discrimination', 'Sexual Harassment']
05/17/2022
Copyright 2024 J. J. Keller & Associate, Inc. For re-use options please contact copyright@jjkeller.com or call 800-558-5011.
...
00-15550-I
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
_________________________________________
No. 00-15550-I
_________________________________________
CARLO V. D'ARAGONA
Plaintiff- Appellee/Cross-Appellant,
v.
BELLSOUTH COMMUNICATIONS SYSTEMS, INC.
Defendant-Appellant/Cross-Appellee.
______________________________________________
On Appeal from the United States District Court for the Southern District of Florida
______________________________________________
Brief of the Equal Employment Opportunity Commission as Amicus Curiae in Support of Appellee
______________________________________________
GWENDOLYN YOUNG REAMS Associate General Counsel
PHILIP B. SKLOVER Associate General Counsel EQUAL EMPLOYMENT LORRAINE C. DAVIS OPPORTUNITY COMMISSION Assistant General Counsel Office of General Counsel 1801 L Street, N.W. JENNIFER S. GOLDSTEIN Washington, DC 20507 Attorney (202) 663-4733
D'Aragona v. BellSouth Communications Sys., Inc., No. 00-15550-I
CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT
Pursuant to 11th Cir. R. 26.1-1, I hereby certify that the following persons or entities have an interest in the outcome of this case:
Amlong & Amlong, Attorneys for Plaintiff William R. Amlong, Attorney for Plaintiff BellSouth Communications Systems, Inc., Defendant Steven T. Breaux, Attorney for Defendant Lorraine C. Davis, Assistant General Counsel, EEOC Carlo V. D'Aragona, Plaintiff Equal Employment Opportunity Commission, Amicus Curiae Jennifer S. Goldstein, Attorney, EEOC Heinrich, Gordon, Hargrove, Weihe & James, Attorneys for Defendant Hon. Frederico A. Moreno, U.S. District Judge, S.D. Fla. Isiah Ortiz, Attorney for Plaintiff Gwendolyn Young Reams, Associate General Counsel, EEOC Valerie Shea, Attorney for Defendant Philip B. Sklover, Associate General Counsel, EEOC Pursuant to Fed. R. App. P. 26.1, the Equal Employment Opportunity Commission, as a government agency, need not file a corporate disclosure statement.
_________________________ Jennifer S. Goldstein
C-1 of 1 TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT.................................................C-1 TABLE OF AUTHORITIES......................................................ii STATEMENT OF INTEREST...................................................1 STATEMENT OF THE ISSUE..................................................2 STATEMENT OF THE CASE...................................................2 SUMMARY OF ARGUMENT.....................................................3 ARGUMENT TITLE VII PROHIBITS AN EMPLOYER FROM DISCRIMINATING AGAINST ONE EMPLOYEE IN RETALIATION FOR THE PROTECTED ACTIVITY OF ANOTHER RELATED EMPLOYEE .... 5
A. The Language of Section 704(a) Does Not Plainly and Unambiguously Exclude Third Parties From Protection From Retaliation..............7
B. The Historical and Statutory Context of Section 704(a) Indicates that Congress Anticipated that Title VII Would Broadly Protect Employees From Retaliation....................................................13
C. The Policies Underlying Title VII Counsel in Favor of Applying Section 704(a) to Protect Third Parties From Retaliation..............20
CONCLUSION........................................................................29
CERTIFICATE OF COMPLIANCE.................................................29
CERTIFICATE OF SERVICESTATEMENT OF INTEREST
The Equal Employment Opportunity Commission is the federal agency charged with interpreting, administering, and enforcing Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Title VII contains an anti-retaliation provision which, as the Supreme Court has recognized ,exists to ensure "unfettered access to statutory remedial mechanisms" by protecting employees from the "fear of economic retaliation [that]might often operate to induce employees quietly to accept substandard conditions." Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997). In this case, Carlos D'Aragona alleged, and a jury found, that his employer BellSouth Communications Systems fired him because his niece pursued and settled a sexual harassment claim against BellSouth. BellSouth now challenges the jury's verdict on the grounds that Title VII does not prohibit retaliation against an individual who did not himself engage in protected activity. This argument, if adopted, would deal a severe blow to the enforcement of Title VII, for it would permit employers to retaliate with impunity against employees related (by blood or association) to the individual engaging in protected activity. Because of the importance of this issue to the enforcement of Title VII, we offer our views to the Court.
STATEMENT OF THE ISSUE1
Whether Title VII prohibits an employer from discriminating against one employee in retaliation for the protected activity of another related employee.
STATEMENT OF THE CASE
BellSouth Communications Systems employed both plaintiff Carlo D'Aragona and D'Aragona's niece (by marriage), Susan Guerra, whom D'Aragona had recommended for employment. R2-57-1-2. In 1996, Guerra filed charges alleging sexual harassment by her supervisor and subsequent retaliation by BellSouth. Guerra sued in federal court and, in response to BellSouth's interrogatories, listed D'Aragona as a witness. Id. Guerra settled her claims against BellSouth in 1997. Id.
After the settlement, Brent Forrey, BellSouth's District Operations Manager, learned D'Aragona was Guerra's uncle. R2-57-2. The settlement increased the overhead costs of Forrey's department and, consequently, factored into his bonus. R5-130-124-41. Forrey fired D'Aragona twomonths after the settlement. R2-57-2. BellSouth claimed D'Aragona's discharge was because of poor job performance. D'Aragona claimed this explanation was pretextual and the real reason was retaliation for his niece's lawsuit. Id.
In a summary judgment motion, BellSouth argued that D'Aragona himself engaged in no protected activity, and so cannot maintain a Title VII retaliation claim. The district court rejected this argument, holding that "the very clear intent of Congress would be undermined if this Court were to construe section 2000e-3 narrowly." R2-57-4. The court subsequently instructed the jury that, to prevail, D'Aragona had to prove[h]is firing was causally related to his niece's complaint of sexual harassment." R3-102-7; see also id. ("There must be causation between the discharge and the niece's complaint."). The jury found for D'Aragona.
SUMMARY OF ARGUMENT
BellSouth urges this Court to vacate the judgment of the district court, relying on what it terms the "plain" language of Title VII's anti-retaliation provision. We submit that under well-established principles of statutory interpretation, it is not at all plain that Congress intended to prohibit an employer from retaliating directly against an employee who files a charge, but permit the same employer to retaliate indirectly against a related employee. Under the Supreme Court precedents, a court must look not only at particular words of a statutory provision to ascertain Congress' intent, but also at the words in their specific context and in the broader context of the statute as a whole. Consideration of appropriate interpretive criteria leads to one conclusion: Title VII prohibits retaliation taken because of an employee's protected activity, whether the retaliation is directed at the employee or at a third-party employee.
First, the language of the provision is ambiguous. While use of the term "he" might suggest a less broad protection, that view is undercut by other language which indicates a broader protection was intended. The provision's historical context also supports a broader interpretation. When Congress enacted the anti-retaliation provision in Title VII, it presumably was aware that courts consistently had read similar anti-retaliation provisions in the NLRA and FLSA broadly to encompass retaliation against third parties. It is reasonable to assume Congress intended a similar interpretive approach to the Title VII provision. The statutory context is also illuminating. Both procedurally and substantively, other Title VII provisions protect third parties who have not themselves participated in the statutory process or who are not themselves the object of discriminatory animus.
Finally, Congress' goal in prohibiting retaliation would be critically undermined by permitting retaliation of the type the jury found here. An employer could openly threaten employees that if they file a charge, their co-workers will be subjected to retaliation. Permitting such reprisals is at odds with the purpose of the provision and would be an absurd result. Title VII therefore should be understood to prohibit retaliation against third-party employees.
ARGUMENT
TITLE VII PROHIBITS AN EMPLOYER FROM DISCRIMINATING AGAINST ONE EMPLOYEE IN RETALIATION FOR THE PROTECTED ACTIVITY OF ANOTHER RELATED EMPLOYEE.
Section 704(a) of Title VII, 42 U.S.C. § 2000e-3(a), makes it "an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." The purpose of Title VII's prohibition against retaliation is to "[m] aintain[] unfettered access to statutory remedial mechanisms." Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997). The procedural plan for enforcing Title VII, which relies upon individual citizen complaints, requires that individuals not be deterred from asserting their rights under the Act. As this Court has emphasized, " the filing of charges and the giving of information by employees is essential to the Commission's administration of Title VII" and "the carrying out of the congressional policy embodied in the Act." Pettway v. American Cast Iron Pipe Co., 411 F.2d 998, 1005 (5th Cir. 1969)2; cf. Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 292 (1960) ("effective enforcement" of Fair Labor Standards Act ("FLSA") possible only "if employees felt free to approach officials with their grievances") (cited in Robinson); EEOC v. White & Son Enters., 881 F.2d 1006, 1011 (11th Cir. 1989) (Equal Pay Act's anti-retaliation provision "was designed to prevent fear of economic retaliation by an employer against an employee who chose to voice . . . a grievance").
Defendant BellSouth urges this Court to reverse the district court and hold that D'Aragona did not state a cause of action under Title VII even though he alleged, and the jury found, that his firing was taken in direct retaliation for the protected activity of another employee, his niece. According to BellSouth, it is "clear that Mr. D'Aragona does not fall within the protection of the express language of the statute" because he did not engage in protected activity himself.Def. Br. at 10. BellSouth also maintains that "there are good and ample reasons" to read Title VII in such a way as to permit an employer to retaliate against an employee related to or associated with another, protected employee. Id.
BellSouth does not engage in any analysis of the statutory language. Instead it simply cites the language of the anti-retaliation provision and urges this Court not to expand the statute "beyond its plain meaning."Def. Br. at 19.In our view, BellSouth's proposed reading of Title VII is profoundly flawed as a matter of statutory interpretation. We submit that it is not "plain" that Congress intended to leave third-party employees outside the protection of the anti-retaliation provision.Rather, the language of the anti-retaliation provision considered in its context, as Supreme Court precedent instructs, supports the view that Title VII protects third-party employees from retaliation by their employer.
A. The Language of Section 704(a) Does Not Plainly and Unambiguously Exclude Third Parties From Protection From Retaliation.
The Supreme Court has explained that the "first step in interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case." Robinson, 519 U.S. at 340.According to the Court, the inquiry "must cease if the statutory language is unambiguous and 'the statutory scheme is coherent and consistent.'" Id. (emphasis added).The "plainness or ambiguity of statutory language" is not determined in isolation; it is determined "by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole." Id. at 341.Indeed, "[ i]n ascertaining the plain meaning of the statute, the court must look to the particular statutory language at issue, as well as the language and design of the statute as a whole."K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988); see also Crandon v. United States, 494 U.S. 152, 158 (to determine meaning court must look at language, design of statute as a whole, and statute's object and policy) (1990); United States v. DBB, Inc., 180 F.3d 1277, 1281 (11th Cir. 1999) ("We do not look at one word or term in isolation, but instead we look to the entire statutory context.").This Court has stressed that the "central question in statutory interpretation is, of course, what meaning Congress intended the term to bear when it passed the [statute]."Alabama v. TVA, 636 F.2d 1061, 1066 (5th Cir. Feb. 1981). In this case, BellSouth contends that the "plain language" of the anti-retaliation provision precludes coverage of third-party retaliation claims.There is no doubt that the language of the provision, if divorced from its larger context, could be read to protect from retaliation only those individuals who themselves engage in protected activity.The question, however, is not whether this is a permissible reading of the statute.See McCarthy v. Bronson, 500 U.S. 136, 139 (1991) (because "statutory language must always be read in its proper context," the "most natural reading" of the statutory language, "when viewed in isolation," does not necessarily control). Rather, the question is what Congress intended as divined from "reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole." Robinson, 519 U.S. at 341.In our view, these indicia of Congressional intent militate in favor of understanding Title VII to prohibit retaliation against third-party employees.
Turning first to the language of the anti-retaliation provision, we submit that even viewed in isolation that language is ambiguous. On the one hand, the word "he" implies a limitation on the scope of the statutory prohibition.But section 704(a) also broadly extends the protection of the statute to "any of [the employer's] employees . . ." who have opposed "any [unlawful] practice" or participated "in any manner" in the enforcement process.42 U.S.C. § 2000e-3(a).This Court has concluded that Congress' repeated use of the word "any" in section 704(a) indicates Congress' intent to afford individuals "'exceptionally broad protection'" from retaliation.Merritt v. Dillard Paper Co., 120 F.3d 1181, 1186 (11th Cir. 1997) (quoting Pettway, 411 F.2d at 1006 n.18); see also Clover v. Total Sys. Servs., 176 F.3d 1346, 1353 (11th Cir. 1999).In the context of section 704(a), the word "'any' means all."Merritt, 120 F.3d at 1186; see also Clover, 176 F.3d at 1353 (same).
Congress' repeated use of the word "any" is significant in interpreting the meaning of the anti-retaliation provision both because it suggests Congress' intent to prohibit retaliation comprehensively and because it makes the use of the word "he" ambiguous.Using "he" to modify "any of his employees or applicants" is grammatically awkward. Moreover, using "he" is curious since, read literally, the statute would prohibit an employer from discriminating against any of "his" employees because "he" [the employer] has engaged in protected activity.3 The scope of a statutory prohibition, designed to further a fundamental public policy goal, should not hang entirely on the ambiguous use (or misuse) of a single word.See United States v. Brown, 333 U.S. 18, 25-26 (1948) (courts should not rely upon a "single ambiguous word in order to give [the statute] a meaning contradictory to the fair import of the whole remaining language").Here, the "remaining language" of the anti-retaliation provision supports a broad view of coverage, a view that would be severely compromised if the term "he" were given a restrictive reading.
The Supreme Court addressed a similar issue in NLRB v. Scrivener, 405 U.S. 117 (1972).The issue in Scrivener was whether the retaliation prohibition of the National Labor Relations Act ("NLRA") applied to an employee who had given a sworn statement to the Board.By its terms, the statute limited coverage to employees who had "'filed charges or given testimony.'" Id. at 122.The Court conceded that the language of the statute "could be read strictly and confined in its reach to formal charges and formal testimony" but noted that it could "also be read more broadly."Id.Specifically, the Court cited the "presence of the preceding words 'to discharge or otherwise discriminate.'" Id. The Court concluded that, "[o]n textual analysis alone," the presence of such words revealed, "particularly by the word 'otherwise,' an intent on the part of Congress to afford broad rather than narrow protection to the employee." Id. (emphasis added).
The Supreme Court's point in Scrivener is simple -- the words of a statute are known by the company that they keep.The use of broad coverage language in a statutory provision suggests that other phrases of the provision should not be given a restrictive reading if doing so would narrow the scope of statutory protection.A "textual analysis alone" thus suggests that Congress did not plainly intend, by use of the term "he," to exclude third-party retaliation from the reach of the statute. In any event, even accepting the premise that the plain terms of the statute refer to individuals who themselves have engaged in protected activity, the statute still does not clearly state that it only applies in such cases.It is generally understood, under the " expressio unius est exclusio alterius" maxim, that where "the persons and things to which [a statute] refers are designated, there is an inference that all omissions should be understood as exclusions." 2A N. Singer, Sutherland Statutory Construction, § 47.23 at 216 (5th ed. 1992). That maxim, however, simply supports an "inference" of exclusivity.Id.As this Court has stressed, the maxim "has its limits and exceptions and cannot apply when the legislative history and context are contrary to such a reading of the statute." United States v. Castro, 837 F.2d 441, 442-43 (11th Cir. 1988).Indeed, " expressio unius 'is perhaps a rule honored more in the breach than in the observance.'" Pudenz v. Littlefuse, Inc., 177 F.3d 1204, 1209 n.5 (11th Cir. 1999); see also Castro, 837 F.2d at 443 n.2 ( expressio unius "is an aid to construction, not a rule of law.It is not conclusive . . . and requires great caution in its application."); Burns v. United States, 501 U.S. 129, 136 (1991) (in some cases, Congress intends silence to preclude a particular statutory application, "while in others Congress' silence signifies merely an expectation that nothing more need to be said in order to effectuate the relevant legislative objective.").
Where the statutory context and legislative history do not support the negative inference of the expressio unius maxim, there should not be even a "mild presumption" that the absence of explicit protection for third parties means Congress intended to leave third parties unprotected from retaliation.Castro, 837 F.2d at 443 n.2; see also State of Ill. Dep't of Pub. Aid v. Schweiker, 707 F.2d 273, 277 (7th Cir. 1983) ("Not every silence is pregnant.").4 This Court consistently declines to adhere to the expressio unius doctrine where other indicia of Congressional intent point to a contrary interpretation.See Federal Reserve Bank of Atlanta v. Thomas, 220 F.3d 1235, 1242-43 (11th Cir. 2000) ( expressio unius must "give way in the face of contrary legislative intent" and "[p] owerful policy concerns"); Pudenz, 177 F.3d at 1210 (applying expressio unius "particularly inappropriate" where context and legislative history showed no congressional intent to exclude unmentioned defense); Castro, 837 F.2d at 443 & n.2 ( expressio unius "inapplicable" where legislative history contradicts any inference created by maxim). Expressio unius likewise should not be applied here, where the context of Title VII's anti-retaliation provision, its history, and the broader policy concerns underlying the retaliation prohibition all indicate Congress intended to confer broad protection from retaliation.Under these circumstances, it is reasonable to draw the inference from the language of section 704(a) that Congress intended to proscribe adverse employment actions taken against a third-party employee in retaliation for a relative or associate's protected activity.
B. The Historical and Statutory Context of Section 704(a) Indicates that Congress Anticipated that Title VII Would Broadly Protect Employees From Retaliation.
In this case, the historical context of Title VII's enactment strongly suggests that Congress intended section 704(a) to have a broad reach. As noted above, both the NLRA and FLSA contain anti-retaliation provisions similar to section 704(a).The NLRA makes it "an unfair labor practice for an employer . . . to discharge or otherwise discriminate against an employee because he has filed charges or given testimony . . . ."29 U.S.C. § 158(a )(4).The FLSA makes it " unlawful for any person . . . to discharge or in any other manner discriminate against any employee because such employee has filed any complaint . . . ." 29 U.S.C. § 215(a)(3).Both of these provisions were in place well before the enactment of Title VII and, thus, were part of the legal "culture" that informed Congress' adoption of section 704(a).Both had been interpreted to cover a wide range of retaliatory activity that was arguably not encompassed within the literal terms of the statute. In several decisions pre-dating Title VII, for example, the National Labor Relations Board had extended the NLRA provision beyond the type of one-on-one reprisal suggested in the language of the statute. The Board had construed the provision to cover aggrieved individuals who had not personally filed the charge.See A.R. Blase Co., 53 LRRM (BNA) 1379 (1946); In re Burnside Steel Foundry, 18 LRRM (BNA) 1200 (1946).The Board also hadrecognized it was unlawful to retaliate against workers because of the protected activity of a co-worker. See In re Serv-Air Aviation, 35 LRRM (BNA) 1547 (1955); In re Kinner Motors, 15 LRRM (BNA) 181 (1944); In re Great W. Mushroom Co., 7 LRRM (BNA) 72 (1940).Significantly, this Court had even extended protection to supervisors, who were not "employees" under the Act, where the retaliation "would restrain or coerce those who are regarded as employees in the exercise of their [statutory] rights." NLRB v. Dal-Tex Optical Co., 310 F.2d 58, 62 (5th Cir. 1962); see also NLRB v. Better Monkey Grip Co., 243 F.2d 836, 837 (5th Cir. 1957) (same).In sum, both the Board and courts had liberally construed the prohibition, in accordance with congressional purpose, to ensure that employers could not "discriminate with impunity against other [workers]" or otherwise impose deterrents "against free recourse to Board processes."In re Briggs Mfg., 21 LRRM (BNA) 1056, 1057 (1947) .5
In similar fashion, the FLSA had been interpreted to achieve the broad purpose of the anti-retaliation provision.See Tennessee Coal, Iron & R.R. v. Muscoda Local No. 123, 321 U.S. 590, 597 (1944) (FLSA "must not be interpreted or applied in a narrow, grudging manner").Thus, for example, a worker who had not actually "filed" a complaint was still protected against retaliation under the FLSA because the court preferred "straining the strict definition of a word" to "distorting the apparent intent and meaning of the statute in the context in which it is used." Goldberg v. Zenger, 15 Wage & Hour Cas. (BNA) 237, 238 (D. Utah1961). Congress is presumed to be "aware of existing law when it passes legislation."Miles v. Apex Marine Corp., 498 U.S. 19, 32 (1990); Cannon v. University of Chicago, 441 U.S. 677, 696-97 (1979).With regard to Title VII, the available evidence confirms not only that was Congress aware of the NLRA and FLSA anti-retaliation provisions, but also that it adopted section 704(a) with reference to the experience under those Acts.See, e.g., 110 Cong. Rec. 7207, 7211 (1964) (discussing constitutionality of Title VII anti-retaliation provision by comparing it to anti-retaliation provisions in FLSA and NLRA, and citing cases addressing those provisions); Hearing Before House Comm. on Educ. & Lab., Subcomm. on Lab., 88th Cong., 1st Sess. at 83-84 (May 3, 1963) (testimony of AFL-CIO associate general counsel that proposed Title VII anti-retaliation provision "closely resemble[d]" the NLRA provision). It therefore must be assumed that Congress intended section 704(a) to be applied against the backdrop of the interpretative standards established under the similar NLRA and FLSA provisions.SeeMcNely v. Ocala Star-Banner Corp., 99 F.3d 1068, 1076 (11th Cir. 1996) ("A familiar canon of statutory construction is that 'evaluation of congressional action must take into account its contemporary legal context.'").6 Congress may not have specified that section 704(a) should extend to third-party retaliations.However, the context in which Title VII was enacted suggests that Congress fully anticipated that, as with anti-retaliation provisions in comparable statutes, courts would interpret the provision broadly to ensure that employers did not use retaliation as a method of deterring individuals from complaining about discriminatory treatment.Read in context, the words of the statute reveal Congress's intent to establish a general prohibition against workplace retaliation, while leaving "to the executive and judicial branches the task of adding flesh to bones."Matter of Sinclair, 870 F.2d 1340, 1342 (7th Cir. 1989).In view of the historical context in which Congress adopted section 704(a), the statute should be applied to prohibit third-party retaliations.
The broader context and design of the statute itself also reveals a tension in reading the anti-retaliation provision narrowly to apply only to individuals who themselves engage in protected activity. Other provisions of Title VII plainly reject such an individualized view of the enforcement process.For example, Title VII specifically authorizes the filing of charges on behalf of third parties. See 42 U.S.C. § 2000e-5 (authorizing the filing of charges "on behalf of a person claiming to be aggrieved").Title VII also permits an individual who has not filed a timely charge to rely on the timely charge of another employee in pursuing a similar discriminatory claim.See Wu v. Thomas, 863 F.2d 1543, 1547-48 (11th Cir. 1989) (wife's charge of retaliation on behalf of husband sufficient to support husband's claim; no need for husband to file his own charge).Title VII thus extends statutory protections to individuals who have not themselves participated in the enforcement process.
In substantive provisions as well Title VII protects third parties. For example, courts, including this Court, have held that individuals discriminated against because of their association with a person of a different race state a claim under Title VII.See Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888, 891-92 (11th Cir. 1986) (white man alleging he was not hired because of his interracial marriage has cause of action); Tetro v. Elliot Popham Pontiac, 173 F.3d 988, 994 (6th Cir. 1999) (white employee discharged because his child was biracial states cause of action "even though the root animus for the discrimination is a prejudice against the biracial child") (relying on Parr).The Sixth Circuit recently noted that underlying the Tetro decision is the understanding that "Title VII [was designed] to protect individuals who are the victims of discriminatory animus towards third persons with whom the individuals associate."Johnson v. University of Cincinnati, 215 F.3d 561, 574 (6th Cir. 2000).This Court also has held that a third party, injured by discrimination against others, may proceed under Title VII.EEOC v. Mississippi Coll., 626 F.2d 477, 481-83 (5th Cir. 1980) (white employee may challenge discrimination against blacks where she alleges injury from working in environment charged with discrimination).
This design of Title VII to protect third parties is at odds with a view of the anti-retaliation provision that would leave a third-party employee unprotected from retaliation.At a minimum, this tension creates an ambiguity as to whether Congress meant to leave third parties unprotected.In this regard, the interpretive issue here closely parallels the issue before the Supreme Court in Robinson, 519 U.S. 337. In Robinson, the Court stressed that reading the word "employees" narrowly to encompass only current employees was in tension with other provisions of Title VII, which contemplate coverage of former employees. Id.at 342-44. The Court relied in large part on these other provisions - the "broader context" - to hold that Title VII's anti-retaliation provision protects former employees.The other provisions of Title VII likewise are strong evidence that Congress intended to encompass third-party employees within the protections of the anti-retaliation provision.
C. The Policies Underlying Title VII Counsel in Favor of Applying Section 704(a) to Protect Third Parties From Retaliation.
It is significant, as an interpretive matter, that to hold that Title VII leaves third-party employees unprotected from retaliation "would effectively vitiate much of the protection afforded by §704(a)." Cf. Robinson, 519 U.S. at 345.BellSouth's proposed reading of the statute, if adopted, would have a chilling effect on a whole range of protected activity and would invite a climate that is hostile to the assertion of Title VII rights.Under BellSouth's proposed reading, an employer could openly use the threat of third-party retaliations to discourage the very activities protected by section 704(a).An employer could adopt a policy of seeking reprisals in any case in which an employee protested discrimination, filed a charge with the Commission, or otherwise participated in the enforcement process.That policy could require the termination of any relative, friend, or co-worker of the individual engaging in the protected activity.By creating a powerful disincentive for individuals to challenge discrimination, such a policy or practice would undermine Title VII's enforcement scheme and interfere with the Commission's access to information about potentially unlawful employment practices.As the Supreme Court has observed, "it needs no argument to show that fear of economic retaliation" might induce employees "quietly to accept [unlawful] conditions."Mitchell, 361 U.S. at 292.
Indeed, the fact that the retaliation is against a third-party may enhance the chilling effect on the employee contemplating the exercise of protected activity.Where an employee has already been the target of discrimination, the employee's personal desire to vindicate statutory rights may outweigh the fear of economic sanction.But if the employer could target other employees, particularly those of close relation, the aggrieved employee may be more reluctant to assert a Title VII claim because the employee would risk not only his or her own economic future, which may already have been threatened by the employer, but the future of fellow workers as well.Under this scenario, the fundamental protections presumably secured by section 704(a) would be substantially undermined. It is well-settled that the purpose of anti-retaliation provisions is an important interpretive tool.See Robinson, 519 U.S. at 346 (inclusive interpretation of "employees" supported by fact that contrary ruling would be destructive of purpose of anti-retaliation provision); cf. Bob Jones Univ. v. United States, 461 U.S. 574, 586 (1983) (statute should not be interpreted in way that "'would defeat the object which the Legislature intended to accomplish'").This Court repeatedly factors the purpose of anti-retaliation provisions into its statutory analyses.
For example, in Bailey v. USX Corp., this Court held that former employees were protected from retaliation under Title VII because a "plain-meaning rule should not be applied to produce a result which is actually inconsistent with the policies underlying the statute."850 F.2d 1506, 1509 (11th Cir. 1988); see also EEOC v. White & Son Enters., 881 F.2d 1006, 1011 (11th Cir. 1989) ("giving a broad construction to the [ FLSA's] anti-retaliation provision" promotes purpose of provision -- "prevent[ ing] fear of economic retaliation by an employer").In Marshall v. Georgia Southwestern College, 489 F. Supp. 1322, 1331 (M.D. Ga. 1980), the district court held a husband was protected from retaliation for his wife's complaints under the Equal Pay Act (part of the FLSA) because "[o] therwise the purposes of the statute could be subverted through indirect retaliations with impunity."This Court affirmed, holding that the evidence supported the finding that plaintiff "was asked to resign . . . in retaliation for his wife's complaints regarding unequal pay."Brock v. Georgia Southwestern Coll., 765 F.2d 1026, 1037-38 (11th Cir. 1985); compare Federal Reserve Bank of Atlanta, 220 F.3d at 1242-43 ( expressio unius must give way in the face of "[p] owerful policy concerns") .7
Based largely on these concerns, numerous courts have recognized that Title VII's protection from retaliation can extend to individuals who have not themselves engaged in protected activity.See EEOC v. Ohio Edison Co., 7 F.3d 541 (6th Cir. 1993); Gonzalez v. New York State Dep't of Corr. Servs., 122 F. Supp. 2d 335, 347 (N.D.N.Y. 2000); Thomas v. American Horse Shows Ass'n, 1999 WL 287721, *11-12 (E.D.N.Y. 1999), aff'd, 205 F.3d 1324 (2d Cir. 2000); EEOC v. Nalbandian Sales, Inc., 36 F. Supp. 2d 1206, 1209 (E.D. Cal. 1998); Murphy v. Cadillac Rubber & Plastics, Inc., 946 F. Supp. 1108, 1118 (W.D.N.Y. 1996); McKenzie v. Atlantic Richfield Co., 906 F. Supp. 572, 575 (D. Colo. 1995); Probst v. Reno, 1995 WL 613129, *8 (N.D. Ill. 1995); Thurman v. Robertshaw Control Co., 869 F. Supp. 934, 941 (N.D. Ga. 1994); Mandia v. Arco Chem. Co., 618 F. Supp. 1248, 1250 (W.D. Pa. 1985); Clark v. R.J. Reynolds Tobacco Co., 27 FEP Cases (BNA) 1628, 1633-34 (E.D. La. 1982); De Medina v. Reinhardt, 444 F. Supp. 573 (D.D.C. 1978), aff'd in part, 686 F.2d 997 (D.C. Cir. 1982); Kornbluh v. Stearns & Foster Co., 14 FEP Cases (BNA) 847, 850-51 (S.D. Ohio 1976). This Court, in two different cases, has assumed without discussion that retaliation against a third party would be unlawful under the Act.See Wu v. Thomas, 863 F.2d 1543, 1547-48 (11th Cir. 1989); Hudson v. Southern Ductile Casting Corp., 849 F.2d 1372, 1376 (11th Cir. 1988).
Two courts have held to the contrary.See Smith v. Riceland Foods, Inc., 151 F.3d 813 (8th Cir. 1998) (claims of third-party retaliation not covered); Holt v. JTM Indus., 89 F.3d 1224 (5th Cir. 1996) (same under Age Discrimination in Employment Act).Smith - the lone appellate decision under Title VII to hold third parties unprotected - concluded, with virtually no analysis, that its ruling was based on the statute's "plain language" and on the fact that protecting third parties from retaliation was not "necessary."151 F.3d at 819.For the reasons set out in this brief, we respectfully disagree with the Eighth Circuit's opinion.Holt, an ADEA case, contains more discussion of the issue but, as the dissent in that 2-1 decision points out, is equally flawed. 89 F.3d at 1228-34 (Dennis, J., dissenting) ("To condone [third-party] retaliation . . . elevates form over substance and permits employers to evade the reach of the statute by making relatives or friends of complaining parties the 'whipping boys' for the protected conduct of others.").
Also undermining the conclusions of Smith and Holt is the analysis of the Seventh Circuit in McDonnell v. Cisneros, 84 F.3d 256 (7th Cir. 1996), where the third party subject to retaliation was a supervisor who had failed to prevent a subordinate from filing a sexual harassment complaint.In McDonnell, Judge Posner, writing for the court, observed that "in the ordinary case an employer would have no reason to retaliate against someone who did not file a complaint." Id. at 262.But, the court continued, this is "[n] ot always" the case, for "[t]here is such a thing as collective punishment."Id. This is a situation, "apparently not foreseen by Congress, in which a literal interpretation of the provision would leave a gaping hole in the protection of complainants."Id.Given that such retaliation is "genuine" and that it was excluded from section 704(a) only because of "pure oversight," the court concluded that it "does no great violence to the statutory language to construe 'he has made a charge' to include . . . 'he allowed a charge to be made.'" Id.
Moreover, it is a "venerable" canon of statutory construction that "statutory language should not be applied literally if doing so would produce an absurd result."Merritt v. Dillard Paper Co., 120 F.3d 1181, 1188 (11th Cir. 1997) (citing Rowland v. California Men's Colony, 506 U.S. 194, 200 & n.3 (1993)).This Court has stressed that "[o] ur jurisprudence has eschewed the rigid application of the law where doing so produces impossible, absurd, or unjust results.Hughey v. JMS Dev. Corp., 78 F.3d 1523, 1529 (11th Cir. 1996); see also Green v. Bock Laundry Mach. Co., 490 U.S. 504, 527 (1989) ( Scalia, J., concurring) (courts should not adhere to literal reading if such reading "produces an absurd . . . result"); Watt v. Alaska, 451 U.S. 259, 266 (1981) ("the circumstances of the enactment of particular legislation may persuade a court that Congress did not intend words of common meaning to have their literal effect"); 2A Sutherland Statutory Construction § 46.07 at 126 ("if the literal import of the text of an act is inconsistent with the legislative meaning or intent, or such interpretation leads to absurd results, the words of the statute will be [read] to agree with the intention of the legislature").
BellSouth's proffered interpretation of Title VII would lead to just such a result, permitting employers to retaliate with impunity, the very thing the anti-retaliation provision was designed to prevent. In our view, it is inconceivable that Congress intended to permit an employer to retaliate in response to a discrimination charge, whether the retaliation is directed at the employee filing a charge, or at a co-worker related to the employee.BellSouth argues that allowing a related co-worker to challenge retaliation would lead to a situation in which "[e] veryone would be protected" from retaliation.Def. Br. at 19. Given Congress' desire to ensure unfettered access to statutory remedial mechanisms, it is unclear why BellSouth views comprehensive protection from retaliation as inconsistent with Congress' goals.Compare Federal Reserve Bank of Atlanta, 220 F.3d at 1243 (refusing to apply expressio unius where to do so would "compromise [congressional policy] goal [of statutory provision] while advancing no policy purpose").
BellSouth also maintains that there would be "no limit" to retaliation claims and that courts would turn into a "'super personnel department.'" Def. Br. at 10-11.BellSouth's contention is incorrect, for there is an important limitation on who may pursue retaliation claims - only the employee who can prove an employee's protected activity caused the employer to take adverse, retaliatory action.See Clover v. Total Sys. Servs., 176 F.3d 1346, 1354 (11th Cir. 1999) ("to prevail on a retaliation claim, a plaintiff must establish the requisite causal connection between her statutorily protected conduct and the adverse employment action"); see also Holt, 89 F.3d at 1232 (Dennis, J., dissenting) ("the crucial issue is whether there is a causal connection between the employer's adverse employment action against the victim and the protected conduct engaged in by the relative or friend"); Thurman, 869 F. Supp. at 941-42 (plaintiff failed to show wife's EEOC charge caused his lay-off); compare McMenemy v. City of Rochester, 241 F.3d 279, 285 (2d Cir. 2001) (causation requirement protects employers from false claims of retaliation).Where the relationship between the employee engaging in protected activity and the employee claiming retaliation is distant, it is unlikely the causation standard could be met.But if the employee can establish causation - whether the third-party employee be a spouse, an uncle, or merely a friend - there is no policy rationale for leaving the employee without legal recourse to challenge the employer's retaliation.8
Finally, we wish to point out that the Commission has long taken the position that Title VII protects third parties from retaliation. In an early administrative decision, the Commission held Title VII was violated where the charging party "was the victim of a personnel action taken because of [another person's] opposition to an unlawful employment practice."EEOC Dec. 72-1267 (Mar. 6, 1972), 1973 EEOC Dec. [CCH] ¶ 6336 at 4612.Emphasizing the need for "very broad protection" from retaliation, the Commission concluded that to hold otherwise would "stifle such opposition to unlawful employment practices and thus be inconsistent with the intent of Section 704(a)." Id.at 4611-12. The Commission consistently has adhered to that view.See EEOC Dec. 78-31 (May 12, 1978), 1983 EEOC Dec. [CCH] ¶ 6574 at 4420-21; EEOC Dec. 77-34 (Aug. 16, 1977), 1983 EEOC Dec. [CCH] ¶ 6581 at 4433-34; EEOC Dec. 75-168 (Jan. 30, 1975), 1983 EEOC Dec. [CCH] ¶ 6546 at 4349. Where the Commission has maintained a longstanding and consistent interpretation of Title VII, that interpretation should be accorded some deference.See EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 257 (1991); Parr, 791 F.2d at 892 ("EEOC's interpretation of Title VII is to be accorded 'great deference,' especially where Commission decisions have been "consistent[]").
CONCLUSION
This Court should hold that Title VII prohibits employers from retaliating against third-party employees.
Respectfully submitted , GWENDOLYN YOUNG REAMS Associate General Counsel
PHILIP B. SKLOVER Associate General Counsel
LORRAINE C. DAVIS Assistant General Counsel
__________________________ JENNIFER S. GOLDSTEIN Attorney
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
CERTIFICATE OF COMPLIANCE
I certify that this brief complies with the type-volume limitation set forth in FRAP 32(a )(7)(B). This brief contains 6975 words.
____________________________ JENNIFER S. GOLDSTEINCERTIFICATE OF SERVICE
I hereby certify that two copies of this brief were mailed, first class, postage prepaid, on this 3rd day of April, to the following:
Steven T. Breaux BellSouth Telecommunications, Inc . 675 West Peachtree Street, N.E. Suite 4300 Atlanta, GA 30375
William R. Amlong AMLONG & AMLONG 500 N.E. Fourth Street 2nd Floor Ft. Lauderdale, FL 33301
____________________________ JENNIFER S. GOLDSTEIN Attorney
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W . Washington, DC 20507 (202) 663-4733
April 3, 2001
1 The Commission takes no position on any other issue in this appeal.
2 Fifth Circuit decisions rendered prior to October 1, 1981, are binding precedent in this Court. Bonner v. City of Prichard , 661 F.2d 1206(11th Cir. 1981) (en banc).
3 We recognize there are intervening clauses in the provision to which the word "he" more logically relates.See 42 U.S.C. § 2000e-3(a) (unlawful "for an employer to discriminate against any of his employees . . . , for an employment agency, or joint labor-management committee . . . to discriminate against any individual, or for a labor organization to discriminate against any member thereof . . . , because he has . . .").Nonetheless, under standard principles of grammar, "he" modifies, independently, each of the preceding clauses of the provision. If nothing else, this illustrates the limits of a purely literal approach to statutory interpretation.
4 The leading statutory interpretation treatise reiterates that the lack of specific mention does not necessarily imply deliberate exclusion:
where an issue arises within a general area covered by statute but for which the legislature has not made specific provision . . . , the court must discern the applicable legislative intent by what is necessarily an act of projection starting from the areas where legislative intent is . . . discernible, and projecting to . . . reasonable corollaries of that intent for the specific issue before the court.Courts cannot avoid the problem by refusing to apply the statute . . . on the ground that the legislature has not yet extended the statute to make it clearly apply . . . .
2A Sutherland Statutory Construction § 45.09 at 42-43; see also Johnson v. United States, 163 F. 30, 32 (1st Cir. 1908) (Holmes, J.) (" it is not an adequate discharge of duty for courts to say:We see what you are driving at, but you have not said it, and therefore we shall go on as before.").
5 The NLRA also makes it unlawful for employers "to interfere with, restrain, or coerce employees in the exercise of [their statutory rights]" or "by discrimination in regard to hire or tenure of employment . . . to encourage or discourage membership in any labor organization." 29 U.S.C. §§ 158(a )(1), (3).Prior to Title VII's enactment, courts and the Board had adopted a similarly flexible approach in applying these anti-reprisal provisions. Hazel-Atlas Glass Co. v. NLRB, 127 F.2d 109, 117 (4th Cir. 1942) (non-union foreman protected if his termination was "designed to interfere with the employees in the exercise of [their statutory] rights"); Golub Bros. Concessions, 51 LRRM (BNA) 1575 (1962) (employer violated NLRA when it discharged supervisor/wife of employee who engaged in union activities, since rank-and-file employees would reasonably fear employer would take similar action against them); In re Am. Rolling Mill Co., 11 LRRM (BNA) 69, 72 (1942) (third-party employees protected).
6 It is also significant that the principle of " expressio unius est exclusio alterius," discussed above, was "not much in fashion" at the time Congress enacted Title VII.Ill. Dep't of Pub. Aid, 707 F.2d at 277.Thus, the view that the description of one covered activity in the statute would necessarily exclude coverage of others was not likely "one of the premises of the legislation." Id.
7 The recent ruling in EEOC v. Total System Services, 221 F.3d 1171 (11th Cir. 2000), does not represent a shift in this Court's interpretive principles, as BellSouth implicitly argues.Def. Br. at 18-19 (Total System "counsel[s] against expanding the statute beyond its plain meaning").In Total System, this Court held that participation in an employer's internal investigation of alleged harassment, when no charge had been filed, was not protected under the participation clause of Title VII.There was no question of retaliation against a third party. Thus the Court did not address whether the statutory language was "plain" with respect to third-party retaliation, whether the statutory and historical context indicated third-party retaliation is encompassed within the prohibition, or whether the underlying statutory policies indicate Title VII should be understood to prohibit third-party retaliation.
8 If BellSouth means to suggest that the caseload of federal courts is a policy justification for rendering invalid an otherwise valid retaliation claim, it would be incorrect.As this Court observed in a Title VII retaliation case, "caseload considerations do not provide a valid basis or questioning whether the statutory language at issue . . . accurately reflects congressional intent."Merritt, 120 F.3d at 1189.
READ MORESHOW LESS
['Sexual Harassment', 'Discrimination']
['Title VII (The Civil Rights Act of 1964)', 'Discrimination', 'Sexual Harassment']
Load More
J. J. Keller is the trusted source for DOT / Transportation, OSHA / Workplace Safety, Human Resources, Construction Safety and Hazmat / Hazardous Materials regulation compliance products and services. J. J. Keller helps you increase safety awareness, reduce risk, follow best practices, improve safety training, and stay current with changing regulations.
Copyright 2024 J. J. Keller & Associate, Inc. For re-use options please contact copyright@jjkeller.com or call 800-558-5011.