Four elements have been extrapolated in determining whether a Title VII retaliation claim will be successful. Plaintiff must establish (1) that he or she engaged in activity protected by Title VII; (2) the exercise of protected rights was known to the defendant; (3) the defendant thereafter took an adverse employment action against the plaintiff; and (4) there was a causal connection between the protected activity and the adverse employment action.
The 6th Circuit recently decided the issue of whether an action may be brought under Title VII, section 704(a), based on a claim of third-party retaliation. Specifically, the plaintiff in this case brought an action claiming that he was fired after his then-fiancée brought an EEOC claim against their mutual employer; his employment was terminated less than a month later. The 6th Circuit held that the plaintiff failed to meet the first element of a Title VII retaliation claim, namely, that he did not engage in any protected activity. The court further held, in accord with other circuits, that the text of the statute was “plain and unambiguous,” and “[t]o be included in [the class of persons protected under the statute], plaintiff must show that his employer discriminated against him ‘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.’” Since the plaintiff did not file the charge with the EEOC or engage in other protected activity, he is not among the class of persons the statute was designed to protect.
On December 14, 2009, the U.S. Supreme Court requested the Solicitor General to file a brief expressing the views of the United States on the inclusion or exclusion of third-party retaliation, and certiorari is pending.
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