Fogleman v. Mercy Hosp.
 00-2263
 IN THE UNITED STATES COURT OF APPEALS
 FOR THE THIRD CIRCUIT
 No. 00-2263
 FOGLEMAN
 vs.
 MERCY HOSP.
 Gregory Fogleman, Appellant
 On Appeal from the United States District
 Court for the Middle District of Pennsylvania
 BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY
 COMMISSION AS AMICUS CURIAE IN SUPPORT OF
 THE APPELLANT
         GWENDOLYN YOUNG REAMS
         Associate General Counsel
         PHILIP B. SKLOVER
         Associate General Counsel
         LORRAINE C. DAVIS
         Assistant General Counsel
         ROBERT J. GREGORY
         Senior Attorney
         EQUAL EMPLOYMENT OPPORTUNITY
            COMMISSION
         1801 L Street, N.W.
         Washington, D.C. 20507
         (202) 663-4059
 STATEMENT OF INTEREST
  The Equal Employment Opportunity Commission ("Commission") is  the
  agency entrusted with the enforcement of Title I of the Americans
  with Disabilities Act, 42 U.S.C.  12101 et seq. ("ADA"); the
  Age Discrimination in Employment Act of 1967, 29 U.S.C.  621 et
  seq. ("ADEA"); Title VII of the Civil Rights Act of 1964, 42 U.S.C. 
  2000e et seq. ("Title VII"); and the Equal Pay Act of 1963, 29 U.S.C. 
  206(d) ("EPA").  Each of these statutes contains a provision that
  outlaws retaliation.  42 U.S.C.  12203(a) (ADA); 29 U.S.C.  623(d)
  (ADEA); 42 U.S.C.  2000e-3(a) (Title VII); 29 U.S.C.  215(a)(3)
  (EPA).<1>  As this Court has recognized, anti-retaliation protection
  exists in federal law because of "the need to prevent employees'
  'fear of economic retaliation' for voicing grievances about [working]
  conditions."  Brock v. Richardson, 812 F.2d 121, 124 (3d Cir. 1987).
  In this case, the plaintiff, Gregory Fogleman, alleges that he was
  terminated from his job with the defendant, Mercy Hospital, "in
  retaliation for a claim by Fogleman's father under the . . . ADA,
  and ADEA."<2>  Memorandum (March 29, 2000) at 1.  In granting summary
  judgment in the defendant's favor, the district court agreed with
  the defendant that "Fogleman lacks standing to pursue his retaliation
  claims because he did not engage in a protected activity under any of the
  asserted statutory provisions.  Rather, he brings the claims as the son
  of another Mercy employee who asserted rights under the relevant acts."
  Id. at 4.  In reaching this conclusion, the district court disregarded
  the Commission's well-established position on this issue, see, e.g.,
  2 EEOC COMPLIANCE MANUAL (BNA) 614:0001 (attached as an addendum to
  this brief), as well as this Court's directive that courts interpret
  anti-retaliation provisions by reference to their "animating spirit,"
  applying them, where necessary to further that spirit, to activities
  not "explicitly covered by the language."  Brock, 812 F.2d at 124
  (applying the FLSA's anti-retaliation provision to retaliation against
  an individual who had not actually engaged in protected activity).
  The decision of the district court, if allowed to stand, would deal a
  severe blow to the enforcement of the anti-discrimination statutes,
  permitting employers to retaliate with impunity against employees
  related (by blood or association) to the individual engaging in the
  protected activity.  Because of the importance of this issue to the
  enforcement of the anti-discrimination statutes, the Commission, pursuant
  to F.R.A.P. 29(a), offers its views to the court as amicus curiae.
 STATEMENT OF THE ISSUE
  Whether the anti-retaliation provisions of the ADA and the ADEA cover
  cases of third-party retaliation, i.e., cases in which an employer
  discriminates against one employee because of the protected activity
  of another employee.
 STATEMENT OF THE CASE
  The claims in this case center on Mercy's decision to terminate
  Fogleman's employment as Supervisor of Security.  The facts are largely
  irrelevant to the legal issue addressed in this brief.  Suffice it to
  say that Fogleman was terminated from his position in September 1996.
  Fogleman's father, Sterril, had also been an employee at Mercy.  In 1994,
  Sterril filed a charge with the Commission, alleging violations of the
  ADA and the ADEA.  This charge led to a civil action in federal court,
  brought in June 1995.  That action, which was eventually settled in
  July 1998, was pending in court at the time Mercy terminated (Gregory)
  Fogleman's employment.  Fogleman alleges that he was terminated from
  his position because of Sterril's claims against Mercy.
  In granting summary judgment, the district court did not address the
  merits of Fogleman's retaliation claim.  Instead, the court ruled
  that Fogleman lacked "standing" to bring that claim because he had
  not himself engaged in the protected activity that allegedly led to
  his termination.  Memorandum (March 29, 2000) at 4.  In the district
  court's view, this result was dictated by the plain language of the
  anti-retaliation provisions at issue, which makes it unlawful for an
  employer to discriminate against an individual because "such individual"
  has engaged in protected activity.  Id. at 6-7 (citing 42 U.S.C. 
  12203 [ADA]; 29 U.S.C.  623(d) [ADEA]).  The court concluded that,
  by virtue of this language, the protections of the anti-retaliation
  provisions extend only to a person "who actually engages in protected
  activity."  Memorandum (March 29, 2000) at 17.  The court perceived
  "no ambiguity in the language employed" and "no tension" between the
  court's restrictive reading of the anti-retaliation provisions "and
  the remainder of the [statute]."  Id.
 ARGUMENT
 THE ANTI-RETALIATION PROVISIONS OF THE ADA AND THE ADEA COVER CLAIMS OF
 THIRD-PARTY RETALIATION.
  This case involves a pure issue of statutory interpretation.  As the
  Supreme Court has explained, the "first step in interpreting a statute
  is to determine whether the language at issue has a plain and ambiguous
  meaning with regard to the particular dispute in the case."  Robinson
  v. Shell Oil Co., 519 U.S. 337, 340 (1997).  The Court has made clear
  that the inquiry "must cease if the statutory language is unambiguous and
  'the statutory scheme is coherent and consistent.'" Id.  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.
  In this case, the district court ruled that the "plain language" of
  the anti-retaliation provisions precludes coverage of third-party
  retaliation claims.  No doubt, the language invoked by the court
  might be read to limit coverage to cases in which the retaliation is
  directed at an individual who has himself (or herself) engaged in the
  protected activity.  The question, however, is not whether this is a
  permissible reading of the statute, nor even whether this is the more
  "natural" 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 always control).  The question is
  whether the text is so crystal clear that it forecloses consideration
  of the broader indicia of congressional intent, such as the manifest
  purpose of the anti-retaliation provisions.  If the language, read in
  context, is unambiguous, that language typically controls.  Cf. Johnson
  v. United States, 120 S. Ct. 1795, 1813 (2000) (Scalia, J., dissenting)
  (acknowledging that there may be a "scrivener's error exception" to
  the plain language rule); Robinson, 519 U.S. at 340 (plain language
  controls but only where it leaves the statutory scheme "'coherent and
  consistent'"); Demarest v. Manspeaker, 498 U.S. 184, 190 (1991) (plain
  language rule does not control where it leads to a result "'demonstrably
  at odds with the intentions of [the statute's] drafters'").  If,
  however, an ambiguity emerges from "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, the court is free to
  consult the broader indicia of intent, which, in this context, strongly
  support coverage of third-party retaliation claims.  For the reasons
  discussed below, we believe that the anti-retaliation provisions
  of the ADA and the ADEA do not unambiguously foreclose coverage of
  third-party retaliation claims.  The ambiguous text aside, we further
  believe that a finding of coverage is mandated by the manifest purpose
  of the anti-retaliation provisions -- "[m]aintaining unfettered access
  to statutory remedial mechanisms."  Robinson, 519 U.S. at 346; see also
  Brock, 812 F.2d at 124 (broad reading of anti-retaliation provision
  required to ensure that "a workplace environment conducive to employee
  reporting" is maintained).<3>
   The Text Of The Anti-Retaliation Provisions Does Not Unambiguously
   Foreclose Coverage Of Third-Party Retaliation Claims
  For a number of reasons, the anti-retaliation provisions at issue are
  ambiguous on the issue of third-party retaliation claims.  First, the
  term "such individual" does not have the clear meaning ascribed to it by
  the district court.  The district court ruled that, by making it unlawful
  for an employer to discriminate against an individual because "such
  individual" has engaged in some form of protected activity, the statute
  unambiguously limits the reach of  anti-retaliation protection to cases
  of "first-party" retaliation. The court overlooked the point, however,
  that Congress may not have used the term in an exclusive sense.
  It is generally understood, under the maxim of "expressio unius est
  exclusio alterius," 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.  Courts have emphasized
  that, because "[n]ot every silence is pregnant," expressio unius is "an
  uncertain guide to interpreting statutes."  E.g., State of Illinois
  Dep't of Public Aid v. Schweiker, 707 F.2d 273, 277 (7th Cir. 1983)
  (Posner, J.).  Courts have cautioned that the expressio unius maxim
  is "'often a valuable servant, but a dangerous master to follow in the
  construction of statutes or documents.'"  E.g., Ford v. United States,
  273 U.S. 593, 612 (1927). "In some cases, Congress intends silence to
  rule out 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."  Burns
  v. United States, 501 U.S. 129, 136 (1991).  That the anti-retaliation
  provisions do not specifically refer to third-party retaliation does
  not, by necessity, rule out the possibility that Congress intended to
  cover such retaliation.
  Further, in this case, the exclusive reading of the statute rests
  entirely on the single term "such individual."  It is by no means
  clear that this single term is so restrictive as to preclude all cases
  of third-party retaliation.  For example, if an employer retaliates
  against a husband because his wife has filed a charge of discrimination,
  one could plausibly say, due to the closeness of the relationship,
  that retaliation against one spouse is retaliation against the other.
  Indeed, in several respects, the law treats a husband and wife as a
  single legal entity, extending to one spouse the protections accorded
  to the other and deeming each spouse to be the agent of the other.
  See, e.g., Morrison v. Potter, 764 A.2d 234, 236, 238 (D.C. 2000)
  (describing a "tenancy by the entireties" as "'essentially a joint
  tenancy, modified by the common-law theory that husband and wife are
  one person'"; noting that "with respect to a joint bank account held
  by a husband and wife, each spouse acts as the other spouse's agent").
  Does the term "such individual" really mean that the spouses are to be
  treated as complete strangers such that retaliation against one spouse
  for the protected activity of another is not actionable?<4>
  In a similar vein, where an employer retaliates against Employee
  A because Employee B has acted on Employee A's behalf in opposing
  discrimination in the workplace, Employee A has not himself engaged
  in protected activity.  Yet, another employee, acting as Employee
  A's representative, has.  The law often accords joint legal status
  to principals and their agents, imputing the conduct of one to the
  other and treating their legal interests as interchangeable.  See,
  e.g., RESTATEMENT (SECOND) OF AGENCY  12 (an agent "holds a power to
  alter the legal relations between the principal and third persons");
   217 B ("[p]rincipal and agent can be joined in an action for a wrong
  resulting from the tortious conduct of an agent");  292 ("other party
  to a contract made by an agent . . . is liable to the principal as
  if he had contracted directly with the principal") (1957).  Does the
  use of the term "such individual" really mean that parties to such a
  representative relationship are to be treated as complete strangers such
  that discrimination against the "principal" for the protected activity
  of the "agent" is not actionable?
  The above questions would appear to answer themselves.  The term "such
  individual" does not compel a finding that Congress intended, by use
  of that single term, to exclude cases of  third-party retaliation from
  the reach of the anti-retaliation provisions.  The term, in any event,
  is ambiguous, given the fact that, in many cases, the legal interests
  of related parties are interchangeable, such that the actions of one
  "such individual" are deemed to be the actions of the other.
  Even assuming that these points do not establish an ambiguity in the
  "language itself," the court, in determining the "plainness or ambiguity
  of statutory language," must still look to "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 this case, the specific
  context is revealing.  Both anti-retaliation provisions are written
  in sweeping terms.  The first clause of the ADEA's anti-retaliation
  provision broadly extends the protection of the statute to "any of
  [the employer's] employees or applicants for employment."  29 U.S.C. 
  623(d) (emphasis added).  The last clause refers to participation
  "in any manner" in the enforcement process.  The ADA contains similar
  language, making it unlawful to discriminate against "any individual"
  who has participated "in any manner" in the enforcement process.
  42 U.S.C.  12203(a).  At the very least, this language suggests that
  Congress enacted the anti-retaliation provisions with a broad view of
  statutory coverage.
  Courts have cautioned against the "dangers in attempting to rely too
  heavily" on the individual "connecting words" of a statute.  E.g., Kelly
  v. Wauconda Park Dist., 801 F.2d 269, 270-71 & n.1 (7th Cir. 1986).
  Instead, a court must "look at all parts of the statute."  Id.
  A court 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."  United States v. Brown, 333 U.S. 18, 25-26 (1948).
  Here, the "remaining language" of the anti-retaliation provisions
  supports a broad view of  coverage, a view that would be severely
  compromised if the term "such individual" 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.  At the very least,
  such language renders the statute ambiguous.  Here, the coverage language
  of the anti-retaliation provisions is broad, extending to "any" of the
  employer's employees or applicants, in the case of the ADEA, or "any"
  individual, in the case of the ADA.  "On textual analysis alone," this
  raises the possibility that Congress did not intend, by use of the term
  "such individual," to exclude third-party retaliation from the reach
  of the statute.
  Finally, the "broader context" of the statutes at issue  reveals a
  structural ambiguity with respect to cases of third-party retaliation.
  The district court's restrictive reading of the anti-retaliation
  provision reflects an "every man for himself" perspective, in which the
  scope of statutory protection for unlawful retaliation is coterminous
  with an individual's own protected activity.  The anti-discrimination
  statutes, however, reject such a "first-person" view of the enforcement
  process.  The ADEA, for example, authorizes the filing of charges on
  behalf of third parties.  See 29 C.F.R.  1626.3 (defining a charge
  under the ADEA as a "statement filed with the Commission by or on
  behalf of an aggrieved person").  So too does the ADA.  See 42 U.S.C. 
  12117 (incorporating Section 706 of Title VII, 42 U.S.C.  2000e-5,
  which specifically authorizes the filing of charges "on behalf of a
  person claiming to be aggrieved").<5>  Both statutes protect opposition
  activity in the workplace, see 29 U.S.C.  623(d); 42 U.S.C.  12203(a),
  activity that, by its very nature, is likely to inure to the benefit
  of other employees in the workplace.  Under the anti-discrimination
  statutes, moreover, an individual who has not filed a timely charge
  may rely on the timely charge of another employee in pursuing a
  claim that arises out of "'similar discriminatory treatment in the
  same time frame.'"  Tolliver v. Xerox Corp., 918 F.2d 1052, 1056-57
  (2d Cir. 1990); see also Wu v. Thomas, 863 F.2d 1543, 1546-48 (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).
  Reflecting a holistic approach to enforcement, the anti-discrimination
  statutes encourage individuals to file charges on behalf of their fellow
  workers and extend statutory protections to individuals who have not
  themselves participated in the enforcement process.  See generally
  McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352, 358-59 (1995)
  (noting that the "private litigant who seeks redress for his or her
  injuries" also benefits other employees by rooting out discrimination
  that may stem from "patterns of noncompliance" or "entrenched resistance
  to [the law's] commands").
  These features of the anti-discrimination statutes are critical.
  The anti-retaliation provisions do not stand alone.  They are part
  of a statutory framework that seeks to root out discrimination
  through a process of informal complaint, administrative dispute
  resolution, and litigation.  Why would Congress outlaw retaliation,
  permit employees to benefit from the protected activity of others, and
  then leave the employer free to retaliate with impunity against those
  employee-beneficiaries?  At the very least, there is an uncomfortable
  fit between the restrictive reading of the anti-retaliation provisions
  and the enforcement provisions of the anti-discrimination statutes.
  This supports an argument that the statutes at issue are ambiguous on
  the precise issue of whether the anti-retaliations provisions protect
  against third-party retaliation.
  In this regard, the interpretive issue in this case closely parallels
  the issue before the Supreme Court in Robinson v. Shell Oil Co., 519
  U.S. 337.  In Robinson, the Supreme Court held that the protections of
  Title VII's anti-retaliation provision extend to former employees.  In
  ruling that the text did not unambiguously foreclose coverage of former
  employees, the Court relied principally on the fact that a restrictive
  reading of the anti-retaliation provision, limiting protection to current
  employees,  was in tension with other provisions of Title VII, which
  contemplate coverage of former employees.  Id. at 342-44.  The Court
  concluded that this tension made the statute "necessarily ambiguous."
  Id. at 343.  The same is true in this case.  The anti-discrimination
  statutes contemplate that the protections of the statute will run
  to employees who have not themselves engaged in protected activity.
  Yet, under a restrictive reading of the anti-retaliation provisions,
  those individuals will be vulnerable to acts of retaliation stemming
  from the protected activity of other employees.  As in Robinson, the
  "broader context" of the statute exposes an ambiguity in the fabric of
  the statute's enforcement provisions.
  The interpretive issue in this case is also closely analogous to the
  issue in Ford v. Schering-Plough Corp., 145 F.3d 601 (3d Cir. 1998),
  cert. denied, 525 U.S. 1093 (1999).  In that case, this Court held
  that the ADA covers individuals who are no longer performing work for
  the employer.  This Court stressed that a more restrictive reading
  of the statute's coverage provisions would be inconsistent with other
  provisions in the statute, specifically, those provisions that protect
  against discrimination in a wide range of employee benefits, including
  benefits that, by their very nature, become available only upon an
  individual's retirement or separation from employment.  This Court
  reasoned that the "disjunction between the explicit rights created by
  Title I of the ADA and the ostensible eligibility standards for filing
  suit under Title I" rendered the statute "ambiguous" on the coverage
  issue.  Id. at 606 (noting that a court must look to the statute "'as
  a whole'" in assessing ambiguity).  A similar "disjunction" is produced
  in this case if employees, otherwise entitled to claim the protections
  of the statute, are vulnerable to acts of retaliation prompted by the
  protected activities of other employees.
  In ruling that third-party retaliation falls outside the protections of
  the anti-retaliation provisions, the district court concluded that there
  was no "tension" between a narrow construction of the anti-retaliation
  provisions and "the remainder of the [statute]."  Memorandum (March 29,
  2000) at 17.  In fact, the "tension" produced by the district court's
  interpretation is palpable.  The anti-discrimination statutes encourage
  the filing of third-party charges and permit employees to benefit from
  the protected activity of other employees.  Yet, under the district
  court's interpretation, the very same employees who are entitled to
  benefit from third-party protected activity are subject to retaliation
  for that protected activity.  The district court's interpretation leaves
  a statute at war with itself.
  To be sure, in this case, the person engaging in the protected activity,
  Fogleman's father, was not engaging in protected activity on Fogleman's
  behalf.<6>  The district court's interpretation, however, turns entirely
  on a rigid, plain language argument, one that would foreclose coverage
  of any third-party retaliation claim.  Either that argument succeeds
  on its own terms, because the statutes are indeed unambiguous, or it
  fails, due to ambiguity, in which case this Court is free to look to the
  broader indicia of intent.  The "disjunction" produced by a restrictive
  reading of the anti-retaliation provisions, together with the other
  ambiguities cited above, support a finding that the statutes at issue
  are ambiguous on the precise question of whether cases of third-party
  retaliation are excluded from coverage.
  B.   The Anti-retaliation Provisions Should Be Construed To   Cover
  The Claim Of An Employee Who Suffers An Adverse   Action Because Of
  The Protected Activity Of Another   Employee
  For the foregoing reasons, the meaning of the anti-retaliations
  provisions is ambiguous, when determined "by reference to the
  language itself, the specific context in which that language is used,
  and the broader context of the statute[s] as a whole."  Robinson,
  519 U.S. at 341.  Under these circumstances, this Court is "left to
  resolve that ambiguity."  Id. at 345.  In so doing, this Court is
  free to look beyond the naked text in arriving at a meaning that
  fully effectuates the intent of the anti-retaliation  provisions.
  Cf. Public Citizen v. U.S. Department of Justice, 491 U.S. 440, 455
  (1989) ("Looking beyond the naked text for guidance is perfectly proper
  when the result it apparently decrees is difficult to fathom or where
  it seems inconsistent with Congress' intention.").
  Freed from the restraints of a rigid literalism, the argument for
  coverage is compelling.  First, coverage has a reasonable foundation
  in the prohibitions of the anti-retaliation provisions.  The case
  against coverage is based on the statutory maxim of "expressio unius est
  exclusio alterius" -- because the anti-retaliation provisions explicitly
  reference a case of one-on-one retaliation, but make no mention of
  third-party retaliation, the statutes are properly read as excluding
  cases of third-party retaliation.  As discussed above, the "expressio
  unius" maxim is not controlling.  It applies, if at all, only "when in
  the natural association of ideas in the mind of the reader that which
  is expressed is so set over by way of strong contrast to that which
  is omitted that the contrast enforces the affirmative inference that
  that which is omitted must be intended to have opposite and contrary
  treatment."  Ford, 273 U.S. at 611.
  In this case, third-party retaliation is not in "strong contrast" to
  what is clearly proscribed in the statute.  Id.  To the contrary, the
  one flows inexorably from the other.  Congress has clearly prohibited
  employers from retaliating against individuals who engage in protected
  activity.  It is hardly a leap to say that the anti-retaliation
  provisions also apply when the employer targets for retaliation some
  employee other than the employee actually engaging in the protected
  activity.  Why would Congress, having taken the step of prohibiting
  retaliation, left employers free to retaliate with impunity against
  third persons?  Why would Congress, having encouraged protected activity
  on behalf of other employees, left the beneficiary of that protected
  act exposed to retaliation?
  Of course, Congress could have removed all doubt on the point  by
  explicitly covering claims of third-party retaliation.  But Congress'
  failure to make the point explicit does not preclude this Court from
  filling the gap left by Congress (if such gap exists), at least where, as
  here, the statute is ambiguous.  See McDonnell v. Cisneros, 84 F.3d 256,
  262 (7th Cir. 1996) (Posner, J.) (extending Title VII's anti-retaliation
  provision to a situation "apparently not foreseen by Congress," there
  being no reason other than "pure oversight" for the omission).<7>
  As stated in the leading treatise on statutory interpretation:
  [W]here an issue arises within a general area covered by
 statute but for which the legislature has not made specific provision so
 as to preclude a judicial finding of any specific legislative intent,
 the court must discern the applicable legislative intent by what is
 necessarily an act of projection starting from the areas where legislative
 intent is readily discernible and projecting to fair and reasonable
 corollaries of that intent for the specific issue before the court.
 Courts cannot avoid the problem by refusing to apply the statute in
 such a case on the ground that the legislature has not yet extended the
 statute to make it clearly apply.
 2A N. SINGER, SUTHERLAND STATUTORY CONSTRUCTION  45.09, at 42-43; see
 also Johnson v. United States, 163 F. 30, 32 (1st Cir. 1908) (Holmes,
 J.) ("The major premise of the conclusion expressed in a statute,
 the change of policy that induces the enactment, may not be set out in
 terms, but 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.").
   The broader context of the statute provides further support for
   coverage.  The basic framework of the anti-discrimination statutes
   suggests that Congress would not have intended to restrict the
   protections of the anti-retaliation provisions to cases of first-person
   retaliation.  The anti-discrimination statutes encourage employees
   to engage in protected activity on behalf of their fellow employees.
   The statutes permit employees to piggy-back on the charges of other
   employees challenging similar discriminatory practices.  At bottom,
   virtually any complaint of discrimination has "class" consequences
   in the sense that it seeks to root out discrimination against a
   protected group.  The restrictive view of statutory coverage flows
   from an "every man for himself" perspective.  The anti-discrimination
   statutes adopt a different perspective:  "all men are brothers."
   Extending the anti-retaliation provisions to third-party retaliation
   produces a "'statutory scheme'" that is "'coherent and consistent.'"
   Robinson, 519 U.S. at 340.
  Indeed, any other interpretation would conflict with the manifest
  purpose of the anti-retaliation provisions.  The anti-retaliation
  provisions exist for an obvious purpose: "[m]aintaining unfettered
  access to statutory remedial mechanisms."  Id. at 346.  The peculiar
  procedural plan for enforcing the anti-discrimination statutes,
  relying upon individual citizen complaints, requires that persons not
  be deterred from filing charges or otherwise opposing practices made
  unlawful by these statutes.  See, e.g., EEOC v. Board of Governors
  of State Colleges and Univs., 957 F.2d 424, 431 (7th Cir. 1992);
  cf. Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 292 (1960)
  (noting that "effective enforcement" of the FLSA could be expected only
  "if employees felt free to approach officials with their grievances").
  The "filing of charges and the giving of information by employees is
  essential to the Commission's administration of [the anti-discrimination
  statutes]" and "the carrying out of congressional policy embodied in
  [these statutes]."  Pettway v. American Cast Iron Pipe Co., 411 F.2d 998,
  1005 (5th Cir. 1969); accord EEOC v. Cosmair, Inc., 821 F.2d 1085, 1090
  (5th Cir. 1987); Garcia v. Lawn, 805 F.2d 1400, 1405-06 (9th Cir. 1986).
  Aware of the importance of private complaints to the enforcement of the
  anti-discrimination statutes, Congress, in enacting anti-retaliation
  protection, "'unmistakably intended to ensure that no person would be
  deterred from exercising his rights under [these statutes] by the threat
  of discriminatory retaliation."  EEOC v. Ohio Edison Co., 7 F.3d 541,
  543 (6th Cir. 1993).
  The district court's interpretation of the anti-retaliation provisions
  flies in the face of this "unmistakable" congressional intent.  Under
  the district court's interpretation, for example, an employer could
  discharge workers in retaliation for organized opposition activities,
  thereby undermining the ability of unions or other organizations to wage
  campaigns against discriminatory practices; to the extent the workers
  themselves had not engaged in opposition activity, they would not be
  protected by the statute.  An employer could also discourage contacts
  with union representatives, co-workers, or attorneys, by retaliating
  against individuals on whose behalf such representatives act (whether
  in opposing discrimination or filing charges).  At the very least,
  the court's approach would invite a climate that is hostile to the
  assertion of statutory rights.
  In fact, under the district court's interpretation, an employer
  could openly use the threat of third-party retaliation to ban
  the very activities protected by the anti-retaliation provisions.
  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 protected activity.  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.
  If anything, the fact that the retaliation is against a third party
  only enhances the pressure on the employee contemplating the exercise
  of protected activity.  Where an employee has already been the target
  of discrimination, the threat of economic sanction may be outweighed
  by the employee's personal desire to vindicate her statutory rights.
  If the employer, however, could reach into the workforce to target other
  employees, the aggrieved employee may be more reluctant to assert her
  statutory rights.  In that case, the employee risks not only her own
  economic future, which has already been threatened by the employer, but
  the future of her fellow workers as well.  See EEOC COMPLIANCE MANUAL
  (BNA) 614:0003 (threat of retaliation against an individual "related to
  or associated with" the person contemplating protected activity could
  well "discourage that person from pursuing those rights").
  A court should avoid any interpretation of a statute that leads to
  an absurd or irrational result.  See Green v. Bock Laundry Machine
  Co., 490 U.S. 504, 527 (1989) (Scalia, J., concurring); 2A N. SINGER,
  SUTHERLAND STATUTORY CONSTRUCTION  46.07, at 126.  The district court's
  interpretation leads to just such a result, permitting employers to
  retaliate with impunity, the very thing that the anti-retaliation
  provisions are designed to prevent.
  Further support for the broader reading of the anti-retaliation
  provisions comes from the large body of case law, interpreting the
  anti-retaliation provisions in a flexible manner.  Courts have routinely
  eschewed an overly technical interpretation of the anti-retaliation
  provisions where such an interpretation would undermine the manifest
  purpose of these provisions.  Courts have extended anti-retaliation
  protection to activities not explicitly referenced in the statute where
  a contrary reading would produce a "chilling effect on employees'
  assertion of rights."  E.g., Brock v. Casey Truck Sales, Inc., 839
  F.2d 872, 879 (2d Cir. 1988).  "[C]ourts have frequently applied the
  retaliation provisions of employment statutes to matters not expressly
  covered by the literal terms of these statutes where the policy behind
  the statute supports a non-exclusive reading of the statutory language."
  Ohio Edison, 7 F.3d at 545 (collecting cases).  As this Court stated in
  Brock v. Richardson, a case involving the anti-retaliation provision of
  the FLSA, "courts interpreting the anti-retaliation provision have looked
  to its animating spirit in applying it to activities that might not have
  been explicitly covered by the language."  812 F.2d at 124 (collecting
  cases).  The "key to interpreting the anti-retaliation provision is the
  need to prevent employees' 'fear of economic retaliation' for voicing
  grievances about [illegal] conditions."  Id.; see also McDonnell, 84
  F.3d at 262 (interpreting Title VII's anti-retaliation provision to
  cover protected activity that "does not come within the scope" of the
  provision "if interpreted literally" to avoid creating a "gaping hole" in
  the protections of the provision); Haley v. Fiechter, 953 F. Supp. 1085,
  1092 (E.D. Mo. 1997) ("Courts which have been called upon to interpret
  different federal whistleblower statutes have uniformly held that such
  statutes should be broadly construed, even where the conduct involved
  did not come under the literal terms of the statute, in order to further
  their remedial purpose."), aff'd, 138 F.3d 1245 (8th Cir. 1998).
  Notably, some of this case law, which arises under parallel
  anti-retaliation provisions in the NLRA and the FLSA, pre-dates the
  enactment of either the ADA or the ADEA.  See, e.g., NLRB v. Dal-Tex
  Optical Co., 310 F.2d 58, 62 (5th Cir. 1962) (noting that several federal
  courts had extended the protections of the NLRA's  anti-retaliation
  provision to individuals not explicitly covered by the provision where
  retaliation against such individuals "would restrain or coerce" the
  exercise of statutory rights); Goldberg v.  Zenger, 15 WH Cases 237,
  238 (D. Utah 1961) (finding that 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"); In re Briggs Mfg. Co., 75 NLRB No. 65,
  21 LRRM 1056, 1057 (1947) (ruling that the anti-retaliation protection
  under the NLRA must be liberally construed to assure that employers
  could not "discriminate with impunity against other members of the
  working class" or otherwise impose deterrents "against free recourse
  to Board processes").  It is fair to assume that, in enacting similar
  anti-retaliation provisions in the ADA and the ADEA, Congress intended
  to adopt this flexible approach to anti-retaliation protection.  See,
  e.g., Lorillard v. Pons, 434 U.S. 575, 580-81 (1978) ("Congress is
  presumed to be aware of an administrative or judicial interpretation
  of a statute and to adopt that interpretation" when it "adopts a new
  law incorporating sections of [the prior statute].").
  The district court expressed concern that a broad reading of the
  anti-retaliation provisions would be difficult to administer because
  "the type of relationship which would confer [third-party] standing
  is undefined."  Memorandum (March 29, 2000) at 8.  This concern is
  misplaced.<8>  The elements of a third-party retaliation claim are simple
  to state.  The claimant must demonstrate that he or she was subjected
  to an adverse action because of the protected activity of some other
  individual.  For coverage purposes, the precise relationship between
  the claimant and the individual engaging in the protected activity
  is irrelevant.  The retaliation is actionable if the claimant can
  establish a causal link between the adverse action and the protected
  activity of the other individual.
  The causation standard will ensure that a ruling in favor of coverage
  does not open the floodgates to claims of third-party retaliation.
  In many cases, there will be no connection between the adverse action
  against Employee A and the protected activity of Employee B and, thus,
  no basis for a claim.  Indeed, it seems likely that viable third-party
  retaliation claims will arise only when there is some affiliation between
  the employee suffering the adverse employment action and the employee
  engaging in the protected activity, either because the employee engaging
  in the protected activity is acting on the behalf of the employee
  targeted for retaliation or because the two employees have an obvious
  familial connection (e.g., husband-wife, father-son).  The intent of
  the anti-retaliation provisions can be fully realized without sinking
  the courts in a quagmire of third-party retaliation claims.CONCLUSION
  This Court should hold that the anti-retaliation provisions of the ADA
  and the ADEA cover claims of third-party retaliation.
         Respectfully Submitted,
         GWENDOLYN YOUNG REAMS
         Associate General Counsel
         PHILIP B. SKLOVER
         Associate General Counsel
         LORRAINE C. DAVIS
         Assistant General Counsel
         ROBERT J. GREGORY
         Senior Attorney
         EQUAL EMPLOYMENT OPPORTUNITY
            COMMISSION
         1801 L Street, N.W.
         February 23, 2001
        Washington, D.C. 20507
 CERTIFICATE OF COMPLIANCE
  I, Robert J. Gregory, hereby certify that this brief complies with
  the type-volume limitations imposed under F.R.A.P. 32(a)(7)(B)(i)
  and F.R.A.P. 29(d).  The brief contains 6913 words.
         Robert J. GregoryCERTIFICATE OF SERVICE
 I, Robert J. Gregory, hereby certify that on this 23rd day of
 February, 2001, two copies of the attached brief were sent by first-class
 mail, postage prepaid, to each of the following counsel of record:
       James C. Oschal
       Rosenn, Jenkins & Greenwald
       15 South Franklin Street
       Wilkes-Barre, PA 18711
       Joseph A. O'Brien
       Oliver, Price & Rhodes
       220 Penn Avenue
       P.O. Box 1409, Suite 300
       Scranton, PA 18501-1409
         Robert J. Gregory
 ADDENDUM
 1  The EPA is part of the Fair Labor Standards Act ("FLSA") and, thus, is
 subject to the FLSA's anti-retaliation provision, 29 U.S.C.  215(a)(3).
 2  Because Fogleman brings his claims under the ADA and the ADEA, our
 brief focuses on the anti-retaliation provisions of those two statutes.
 The analysis, however, would be the same under the anti-retaliation
 provisions of Title VII and EPA, which closely parallel those found in
 the ADA and the ADEA.
 3  Arguably, this case is controlled by this Court's decision in Brock.
 In that case, this Court held that the FLSA's anti-retaliation provision
 covered the claim of an individual who had been fired from his job
 because of the employer's mistaken belief that the individual had
 filed a complaint with the Department of Labor.  This Court rejected the
 employer's argument that there was no coverage under the FLSA because the
 claimant had not in fact engaged in protected activity, as purportedly
 required by the literal terms of the statute.  This Court stressed
 that it was "evident that the discharge of an employee in the mistaken
 belief that the employee has engaged in protected activity creates the
 same atmosphere of intimidation as does the discharge of an employee
 who did in fact complain of FLSA violations."  Id. at 125.  Despite the
 arguably controlling nature of the Brock precedent, our brief assumes
 that the legal issue raised by this appeal is an open question in this
 Circuit and argues the case accordingly.  As a general matter, courts
 have split over the third-party retaliation issue.  Compare EEOC v. Ohio
 Edison Co., 7 F.3d 541 (6th Cir. 1993) (claims of third-party retaliation
 covered); Thomas v. American Horse Shows Ass'n, Inc., 1999 WL 287721
 (E.D.N.Y. April 23, 1999) (same), aff'd on other grounds, 2000 WL 232041
 (2d Cir. Jan. 25, 2000); EEOC v. Nalbandian Sales, Inc., 36 F. Supp. 2d
 1206 (E.D. Cal. 1998) (same); Murphy v. Cadillac Rubber & Plastics, Inc.,
 946 F. Supp. 1108 (W.D.N.Y. 1996) (same); De Medina v. Reinhardt, 444
 F. Supp. 573 (D.D.C. 1978) (same), aff'd in part and remanded in part,
 686 F.2d 997 (D.C. Cir. 1982) with Smith v. Riceland Foods, Inc., 151
 F.3d 813 (8th Cir. 1998) (claims of third-party retaliation not covered);
 Holt v. JTM Indus., Inc., 89 F.3d 1224 (5th Cir. 1996) (same).
 4  The district court suggested that "[i]n most cases in which the spouse
 of a complainant suffers retaliation, it may be that the complainant might
 have standing to pursue the claim of retaliation, since the complainant
 would suffer financially from such action as well."  Id. at 9.  The court
 appears to be confusing the issue of Article III "standing" and the
 question of statutory coverage.  In this case, for example, there is
 no question that Fogleman has suffered an injury in fact and, thus, has
 "standing" to be in court.  The question is whether the statutes at issue
 can be interpreted to cover a claim of retaliation against Fogleman based
 on the protected activity of his father.  The problem with the district
 court's interpretation is that it would limit coverage to cases in which
 the employer discriminates against an employee because of the protected
 activity of that employee.  Thus, in the district court's hypothetical,
 even if the retaliation against one spouse would give the complainant
 spouse "standing" to sue, the complainant spouse would still have no
 claim to assert because, under the district court's interpretation,
 the relevant statutes only prohibit retaliation when the retaliation
 is against the same individual who engaged in the protected activity.
 It is only if one takes a flexible view of the statute that a claim
 of retaliation against one spouse because of the protected activity of
 another becomes actionable under the anti-retaliation provisions.
 5  The ADA, in fact, takes the matter one step further, providing explicit
 protection for individuals who "aid[] or encourage[] any other individual
 in the exercise or enjoyment of, any right granted or protected by
 [the Act]."  42 U.S.C.  12203(b).
 6  That is not to say that Fogleman was not a beneficiary of his father's
 complaint in the same way that all employees in a workplace benefit from
 protected activity that roots out discriminatory treatment.  See McKennon,
 513 U.S. at 358-59.
 7  Although not the issue squarely presented in that case, the McDonnell
 court embraced the view, in dicta, that Title VII covers third-party
 retaliation claims.  Id. (opining that Title VII would cover "collective
 punishment" retaliation against individuals other than the complaining
 party).
 8  Part of the court's confusion may have stemmed from its mistaken
 belief that this case involves an issue of "standing."  As discussed above
 (supra n.4), there is no doubt that Fogleman suffered the kind of injury
 that would give him "standing" to sue -- he was terminated from his job.
 The question is whether the anti-retaliation provisions provide a cause of
 action for that injury.  The answer to that question turns upon the proper
 interpretation of those provisions, not upon any issue of "standing."