Last year, in Thompson v. North Am. Stainless the 6th Circuit recognized a claim under Title VII’s anti-retaliation provision for associational retaliation: “Title VII prohibit[s] employers from taking retaliatory action against employees not directly involved in protected activity, but who are so closely related to or associated with” employees who engage in protected activity(emphasis added). I remain critical of this standard for leaving open the issue of how close is close enough.
This week, in Barrett v. Whirlpool Corp. (6th Cir. 2/23/09), the same court was faced with another issue concerning the relationships between protected and unprotected employees. In Barrett, the Court decided that in claims of associational discrimination – that is, where one employee claims discrimination because of a relationship with protected employees – the degree of closeness between the employees simply does not matter. The only relevant issue is whether the employee is discriminated against because of his or her race:
If a plaintiff shows that 1) she was discriminated against at work 2) because she associated with members of a protected class, then the degree of the association is irrelevant…. The absence of a relationship outside of work should not immunize the conduct of harassers who target an employee because she associates with African-American co-workers. While one might expect the degree of an association to correlate with the likelihood of severe or pervasive discrimination on the basis of that association—for example, a nonprotected employee who is married to a protected individual may be more likely to experience associational harassment than one who is merely friends with a protected individual—that goes to the question of whether the plaintiff has established a hostile work environment, not whether he is eligible for the protections of Title VII in the first place.
The treatment of two different plaintiffs in this case illustrate how this standard works.
Lynette Barrett, Caucasian, was friends with African-American employees. Those African-American employees were targeted with what can only be described as offensive and inappropriate misconduct by other white employees – the n-word and other racial epithets, threats of violence, and racist jokes and graffiti. Barrett claimed that other white employees shunned her at work because of her friendship with African-American employees. She sued Whirlpool for harassment. Ultimately, Barrett lost on the merits of her claim. None of the offensive conduct was directed at her, and general snubbing does not support a harassment claim.
Treva Nickens, also Caucasian, was also friends with African-American employees and also witnessed offensive racial conduct at work. Unlike Barrett, however, Nickens had conduct directed specifically at her. After she complained to a supervisor, she was threatened with physical violence. She was also told on more than on occasion by different employees that she needed to stay with her own kind and was called a “nigger lover.” Like Barrett, the racist comments and jokes not directed at her did not support Nickens’s discrimination claim. However, more than Barrett, Nickens was the victim of direct harassment resulting from her associations with black employees - she received a threat of physical violence for reporting racist language and was subjected to a regular stream of offensive comments about her relationship with an African-American co-worker.
The Barrett case is a common sense application of the general rule in discrimination cases – was the individual treated differently because of his or [fill in the protected class]? Unlike Thompson, which went beyond the limits of the statute to create a claim, Barrett falls well within the bounds of what Title VII and the other employment discrimination statutes clearly protect. Moreover, the differing outcomes between Barrett and Nickens shows that this standard has teeth, and something more than a mere association is required to prove discrimination.