*

The Honorable Arthur J. Tarnow, United States District Judge for the Eastern District of Michigan, sitting by

designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 08a0129p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

ERIC L. THOMPSON,

Plaintiff-Appellant,

v.

NORTH AMERICAN STAINLESS, LP,

Defendant-Appellee.

X

-

-

-

-

>

,

-

N

No. 07-5040

Appeal from the United States District Court

for the Eastern District of Kentucky at Frankfort.

No. 05-00002—Karen K. Caldwell, District Judge.

Argued: September 18, 2007

Decided and Filed: March 31, 2008 

Before: MOORE and GRIFFIN, Circuit Judges; TARNOW, District Judge.*

_________________

COUNSEL

ARGUED: David O’Brien Suetholz, SEGAL, LINDSAY & JAMES, Louisville, Kentucky, for

Appellant. Leigh G. Latherow, VanANTWERP, MONGE, JONES, EDWARDS & McCANN, LLP,

Ashland, Kentucky, for Appellee. Gail S. Coleman, EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION, Washington, D.C., for Amicus Curiae. ON BRIEF: David O’Brien Suetholz,

Joseph Delano Wibbels, Jr., SEGAL, LINDSAY & JAMES, Louisville, Kentucky, for Appellant.

Leigh G. Latherow, Gregory L. Monge, VanANTWERP, MONGE, JONES, EDWARDS &

McCANN, LLP, Ashland, Kentucky, for Appellee. Gail S. Coleman, EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION, Washington, D.C., for Amicus Curiae.

TARNOW, D. J., delivered the opinion of the court, in which MOORE, J., joined. GRIFFIN,

J. (pp. 7-12), delivered a separate dissenting opinion.

_________________

OPINION _________________

TARNOW, District Judge. Shortly after Appellant Eric Thompson’s fiancée filed a

discrimination charge with the EEOC against their common employer, the Appellee, Thompson was

terminated. The parties to this appeal ask whether the anti-retaliation provisions in Title VII of the

1
No. 07-5040 Thompson v. North American Stainless Page 2

Civil Rights Act protect a related or associated third party from retaliation under such circumstances.

We hold that that they do, and REVERSE the district court’s grant of summary judgment to the

employer.

I.

From February 1997 through March 2003, the plaintiff, Eric L. Thompson, worked as a

metallurgical engineer for defendant North American Stainless, LP, the owner and operator of a

stainless steel manufacturing facility in Carroll County, Kentucky. Thompson met Miriam

Regalado, currently his wife, when she was hired by the defendant in 2000, and the couple began

dating shortly thereafter. At the time of Thompson’s termination, he and Regalado were engaged

to be married, and their relationship was common knowledge at North American Stainless. 

According to the complaint, Regalado filed a charge with the Equal Employment

Opportunity Commission (EEOC) in September 2002, alleging that her supervisors discriminated

against her based on her gender. On February 13, 2003, the EEOC notified North American

Stainless of Regalado’s charge. Slightly more than three weeks later, on March 7, 2003, the

defendant terminated Thompson’s employment. Thompson alleges that he was terminated in

retaliation for his then-fiancée’s EEOC charge, while North American Stainless contends that

performance-based reasons supported the plaintiff’s termination.

Thompson filed a charge with the EEOC, which conducted an investigation and found

“reasonable cause to believe that [the Defendant] violated Title VII.” After conciliation efforts were

unsuccessful, the EEOC issued a right-to-sue letter and Thompson filed a cause of action against

North American Stainless in the Eastern District of Kentucky. 

North American Stainless moved for summary judgment, contending that the plaintiff’s

claim, that his “relationship to Miriam Thompson [née Regalado] was the sole motivating factor in

his termination,” was insufficient as a matter of law to support a cause of action under Title VII.

The district court granted the defendant’s motion, holding that Thompson failed to state a claim

under either the anti-discrimination provision contained in 42 U.S.C. § 2000e-2(a) or the antiretaliation provision set forth in 42 U.S.C. § 2000e-3(a).

The plaintiff appeals from this judgment, contending that the anti-retaliation provision of

Title VII prohibits an employer from terminating an employee based on the protected activity of his

fiancée who works for the same employer. The EEOC has filed an amicus curiae brief in support

of plaintiff’s position.

II.

A.

A district court’s grant of summary judgment is reviewed de novo. Cicero v. Borg-Warner

Automotive, Inc., 280 F.3d 579, 583 (6th Cir. 2002) (citing Doren v. Battle Creek Health Sys., 187

F.3d 595, 597 (6th Cir.1999)). In reviewing the decision, we apply the same legal standard as the

lower court. Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 657 (6th Cir. 2000). Summary

judgment is only appropriate when the evidence submitted shows “that there is no genuine issue as

to any material fact and that the moving party is entitled to judgment as a matter of law.” Cicero, 280 F.3d at 583 (quoting Fed.R.Civ.P. 56(c)). 
No. 07-5040 Thompson v. North American Stainless Page 3

B.

Section 704(a) of Title VII of the Civil Rights Act prevents retaliation by employers for two

types of activity, opposition, and participation. 

It shall be 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.

42 U.S.C. § 2000e-3.

We are asked whether section 704(a)’s protections extend to persons not expressly described

in the statute. Specifically, does Title VII prohibit employers from taking retaliatory action against

employees not directly involved in protected activity, but who are so closely related to or associated

with those who are directly involved, that it is clear that the protected activity motivated the

employer’s action? As such conduct would undermine the purposes of Title VII, we hold that such

retaliatory action is prohibited.

C.

Defendant argues that the statute is unambiguous. That is, the plain language of the statute

indicates that the only individual protected by 704(a) is the one who conducted the protected

activity. 

However, “[i]t is a well-established canon of statutory construction that a court should go

beyond the literal language of a statute if reliance on that language would defeat the plain purpose

of the statute[.]” Bob Jones University v. United States, 461 U.S. 574, 586, 103 S.Ct. 2017, 2025

(1983). Further, “it is well settled that, in interpreting a statute, the court will not look merely to a

particular clause in which general words may be used, but will take in connection with it the whole

statute . . . and the objects and policy of the law. . . .” Id. (alterations in original) (quoting Brown

v. Duchesne, 19 How. 183, 194, 15 L.Ed. 595 (1857)).

Robinson v. Shell Oil, 519 U.S. 337, 117 S.Ct. 843 (1997), which also interpreted section

704(a), stated that whether a statute is plain and unambiguous can only be evaluated “with regard

to the particular dispute in the case.” Id. at 340. A court must evaluate not only the contested

statutory language, but also “the specific context in which that language is used, and the broader

context of the statute as a whole.” Id. at 341, 117 S.Ct. at 846. 

Burlington Northern and Santa Fe Railway Co. v. White, – U.S. –, 126 S.Ct. 2405 (2006),

discussed that broader context and the object of Title VII: “The anti-retaliation provision seeks to

secure [a non-discriminatory workplace] by preventing an employer from interfering (through

retaliation) with an employee's efforts to secure or advance enforcement of the Act's basic

guarantees.” Id. at 2412. It characterized section 704(a)’s primary purpose as “[m]aintaining

unfettered access to statutory remedial mechanisms.” Id. (quoting Robinson, 519 U.S. 337, 346, 117

S.Ct. 843). Burlington held that a plaintiff must demonstrate a “materially adverse” retaliatory

action, which it defined as one that “well might have dissuaded a reasonable worker from making

or supporting a charge of discrimination.” Id. at 2415 (quotation marks and citations omitted). 

Here, a literal reading of section 704(a) suggests a prohibition on employer retaliation only

when it is directed to the individual who conducted the protected activity. Such a reading, however,

“defeats the plain purpose” of Title VII. There is no doubt that an employer’s retaliation against a
No. 07-5040 Thompson v. North American Stainless Page 4

family member after an employee files an EEOC charge would, under Burlington, dissuade

“reasonable workers” from such an action.

Support for our holding is found as well in the EEOC Compliance Manual. See Meritor Sav.

Bank, FSB v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 2404 (1986) (“[EEOC] Guidelines, while

not controlling . . . do constitute a body of experience and informed judgment to which courts and

litigants may properly resort for guidance.”) (quotation marks and citations omitted); Griggs v. Duke

Power Co., 401 U.S. 424, 433-34, 91 S.Ct. 849, 854-55 (1971) (“The administrative interpretation

of the [Civil Rights] Act by the enforcing agency is entitled to great deference.”). The Burlington

decision also found support in the Compliance Manual for its interpretation of section 704(a), see

126 S.Ct. at 2413-14, as did Robinson, see 117 S.Ct. at 848.

The Compliance Manual expressly states that a person claiming retaliation need not be the

one who conducted the protected activity. “Title VII . . . prohibit[s] retaliation against someone so

closely related to or associated with the person exercising his or her statutory rights that it would

discourage that person from pursuing those rights.” Johnson v. University of Cincinnati, 215 F.3d

561, 580 (6th Cir. 2000) (emphasis added) (quoting EEOC Compliance Manual (CCH) ¶ 8006).

D.

Our holding today is consistent with Circuit precedent, as well as interpretive practices of

both this Court and the Supreme Court. In EEOC v. Ohio Edison Co., 7 F.3d 541 (6th Cir. 1993),

we observed that 

courts have routinely adopted interpretations of retaliation provisions in employment

statutes that might be viewed as outside the literal terms of the statute in order to

effectuate Congress’s clear purpose in proscribing retaliatory activity. Contrary to

defendant's assertions, courts 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.

Id. at 545. We expressly stated, albeit in dicta, that “[w]e agreed with the reasoning of the

DeMedina court that a plaintiff’s allegation of reprisal for a relative’s anti-discrimination activities

states a claim upon which relief can be granted under Title VII.” Id. at 544 (referring to DeMedina

v. Reinhardt, 444 F.Supp. 573 (D.D.C.1978), aff’d in part and remanded in part, 686 F.2d 997

(D.C.Cir.1982)).

Other cases have gone beyond literal language to support a construction that corresponded

with a statute’s purpose. Robinson, supra, interpreted section 704(a)’s prohibition against an

employer “discriminat[ing] against any of his employees” to include former employees, because

such an interpretation was “more consistent with the broader context of Title VII and the primary

purpose of § 704(a).” 117 S.Ct. at 849. 

In Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick, and GMC Trucks, Inc. 173 F.3d 988

(6th Cir. 1999), a white former employee sued his employer for discrimination, alleging he had been

discharged because he had a biracial child. Id. at 994. After reviewing both the purpose of Title VII

and EEOC interpretations, we held that Title VII’s prohibition against discrimination “because of

such individual’s race,” 42 U.S.C. § 2000e-2(a), extended to indirect discrimination, despite the

term’s absence from the statute. Id. at 995. 
No. 07-5040 Thompson v. North American Stainless Page 5

1

The Supreme Court has relied on the National Labor Relations Act to “draw[] analogies . . . in other Title VII

contexts.” Burlington, 126 S.Ct. at 2414. 

In NLRB v. Scrivener, 405 U.S. 117, 121, 92 S.Ct. 798, 801, 31 L.Ed.2d 79 (1972),1 the

Court interpreted section 8(a) of the National Labor Relations Act, which prohibited employers from

“discharg[ing] or otherwise discriminat[ing] against an employee because he has filed charges or

given testimony under this Act.” Id. at 118 (quoting 29 U.S.C. § 158). Despite the plain language,

the Court reversed a court of appeals ruling that an employee enjoyed no protection from reprisals

for other than formal charges or formal testimony. Id. at 121. It reasoned that the broader purpose

of section 8(a) required protection for any participation in the investigative process. Id. Freedom

from retaliation was necessary “to prevent the Board’s channels of information from being dried up

by employer intimidation of prospective complainants and witnesses.” Id. at 122 (quoting John

Hancock Mut. Life Ins. Co. v. NLRB, 191 F.2d 483, 485, 89 U.S.App.D.C. 261, 263 (1951)). 

E.

The district court relied in part on our ruling in Bell v. Safety Grooving & Grinding, LP., 107

Fed. App’x 607. In Bell, the Court affirmed a dismissal of a case under both 42 U.S.C. §§ 2000e-2

and 2000e-3. Contrary to the lower court’s characterization, Bell, an unpublished disposition, only

considered plaintiff’s association with his girlfriend as it related to the discrimination claim. Id. at

609. The basis the court considered for the retaliation claim, under § 2000e-3, was Bell’s

“opposition” activities. Id. Bell did not analyze or decide whether § 2000e-3(a) reached retaliation

claims brought under a third-party association theory.

However, the lower court acknowledged that its ruling would undermine the purposes of

Title VII. That is, it recognized “that retaliating against a spouse or close associate of an employee

will deter the employee from engaging in protected activity just as much as if the employee were

himself retaliated against.” Thompson v. North American Stainless, LP, 435 F.Supp.2d 633, 639

(E.D.Ky. 2006). 

Other courts ruling similarly have made the same observation. See, e.g., Fogleman v. Mercy

Hosp., Inc., 283 F.3d 561, 569 (3rd. Cir. 2002) (“Allowing employers to retaliate via friends and

family, therefore, would appear to be in significant tension with the overall purpose of the

anti-retaliation provisions, which are intended to promote the reporting, investigation, and correction

of discriminatory conduct in the workplace.”); Holt v. JTM Industries, Inc., 89 F.3d 1224, 1227 (5th

Cir. 1996) (“We recognize that there is a possible risk that an employer will discriminate against a

complaining employee’s relative or friend in retaliation for the complaining employee's actions.”).

Fogleman even noted that “as the Seventh Circuit sagely observed, ‘To retaliate against a man by

hurting a member of his family is an ancient method of revenge, and is not unknown in the field of

labor relations.’” Id. (quoting NLRB v. Advertisers Mfg. Co., 823 F.2d 1086, 1088 (7th Cir.1987)).

The dissent asserts that “before today, no circuit court of appeals has held that Title VII

creates a claim for third-party retaliation,” infra p. 10. In fact, the Eleventh Circuit characterized

as “wrongful retaliatory conduct” an EEOC claimant’s charge that her husband was called by the

university (their common employer) and told he would be happier teaching elsewhere. Wu v.

Thomas, 863 F.2d 1543, 1547 (11th Cir. 1989). In addition, the Seventh Circuit’s decision in

McDonnell v. Cisneros, 84 F.3d 256, 262 (7th Cir. 1996) supports a broader reading of section

704(a), and cites Wu with approval. Id. at 262 (“Wu v. Thomas, 863 F.2d 1543, 1547-48 (11th

Cir.1989), goes even further in liberally interpreting section 2000e-3(a) to accomplish its evident

purpose . . .”).

Other courts have expressed concerns as to whether this decision will result in a flood of

suits from relatives and associates of those who file EEOC charges. See, e.g., Fogleman, 283 F.3d
No. 07-5040 Thompson v. North American Stainless Page 6

at 570 (“Congress may have feared that expanding the class of potential anti-discrimination plaintiffs

beyond those who have engaged in protected activity to include anyone whose friends or relatives

have engaged in protected activity would open the door to frivolous lawsuits and interfere with an

employer's prerogative to fire at-will employees.”). 

However, Ohio Edison, supra, opened that door in this Circuit in 1993, and very few cases

asserting a similar cause of action have been seen. Furthermore, as a decision which permitted the

brother of an EEOC claimant to maintain such an action observed, “[t]hat Plaintiff can state a claim

does not establish the EEOC can prove the elements of its case.” EEOC v. Nalbandian Sales, Inc., 36 F.Supp.2d 1206, 1213 (E.D.Cal. 1998). As part of a prima facie retaliation case, all such

claimants must demonstrate, inter alia, “that there was a causal connection between the protected

activity and adverse employment action.” Balmer v. HCA, Inc., 423 F.3d 606, 614 (6th Cir. 2005).

The requirement of a prima facie case in general, and a causal link specifically protect employers

from defending against meritless suits.

Of greater concern to the court would be the result of a contrary ruling. That is, permitting

employers to retaliate with impunity for opposition to unlawful practices, filing EEOC charges or

otherwise participating in such efforts, as long as that retaliation is only directed at family members

and friends, and not the individual conducting the protected activity. As DeMedina put it, “tolerance

of third-party reprisals would, no less than the tolerance of direct reprisals, deter persons from

exercising their protected rights under Title VII.” 444 F.Supp. at 580.

We REVERSE.
No. 07-5040 Thompson v. North American Stainless Page 7

_________________

DISSENT _________________

GRIFFIN, Circuit Judge, dissenting. From time to time, we should remind ourselves that

we are judges, not legislators. This is such a time. Because the majority has rewritten the Civil

Rights Act of 1964 to conform it to their notion of desirable public policy, I respectfully dissent. 

I. 

Often, when judges stray from the text of a statute and legislate from the bench, they do so

ostensibly to implement their perceived intent of Congress. Were judges empowered to revise and

amend statutes to further what we believe to be the “purpose” of the law, there would be no limit

on judicial legislation and little need for Congress. Recognizing the consequences of such unbridled

judicial forays into the legislative sphere, the Supreme Court has admonished “‘time and again that

a legislature says in a statute what it means and means in a statute what it says there.’” Arlington

Cent. Sch. Dist. Bd. of Ed. v. Murphy, 548 U.S. 291, 126 S. Ct. 2455, 2459 (2006) (quoting

Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253-54 (1992)). Accordingly, “[w]hen the

statutory language is plain, the sole function of the courts – at least where the disposition required

by the text is not absurd – is to enforce it according to its terms.” Id. (internal citations and

quotation marks omitted). See also Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997) (“[The

courts’] inquiry must cease if the statutory language is unambiguous and the statutory scheme is

coherent and consistent.”) (internal citation and quotation marks omitted); Rubin v. United States, 449 U.S. 424, 430 (1981) (“When we find the terms of a statute unambiguous, judicial inquiry is

complete, except in rare and exceptional circumstances.”). 

II.

When Congress enacted the Civil Rights Act of 1964, it created a new and limited federal

cause of action for retaliation in the employment setting. The relevant language of the statute

provides: 

It shall be an unlawful employment practice for an employer to discriminate against

any of his employees or applicants for employment . . . 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. 

Title VII of the Civil Rights Act of 1964, § 704(a), 42 U.S.C. § 2000e-3(a) (emphasis added). 

It was Congress’s prerogative to create – or refrain from creating – a federal cause of action

for civil rights retaliation. Congress likewise was entitled to mold the scope of such legislation,

making the boundaries of coverage either expansive or limited in nature. In enacting § 704(a),

Congress chose the latter. The text of § 704(a) is plain and unambiguous in its protection of a

limited class of persons who are afforded the right to sue for retaliation. To be included in this class,

the 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.” 42 U.S.C. § 2000e-3(a) (emphasis added). 

By application of the plain language of the statute, plaintiff Eric L. Thompson is clearly not

included in the class of persons for whom Congress created a retaliation cause of action because
No. 07-5040 Thompson v. North American Stainless Page 8

1

Unpublished opinions of this court are not precedentially binding under the doctrine of stare decisis. United

States v. Lancaster, 501 F.3d 673, 677 (6th Cir. 2007); United States v. Sanford, 476 F.3d 391, 396 (6th Cir. 2007).

Thompson, himself, did not oppose an unlawful employment practice, or make a charge, testify,

assist, or participate in an investigation. 

Plaintiff and the EEOC acknowledge that the text of the statute does not create a federal

cause of action for third-party retaliation. Moreover, they concede that there is no evidence that

Congress intended to establish such a new federal cause of action. Nonetheless, they offer various

reasons why we should disregard the text of the statute in favor of their public policy preferences.

The primary contention is that a “narrow” interpretation of § 704(a), limited to the statutory text,

would create an “absurd” result. Further, we should defer to the EEOC’s interpretation of the

statute. These assertions are dependent upon the premise that the statutory language is ambiguous.

It is not.

In essence, plaintiff and the EEOC request that we become the first circuit court to hold that

Title VII creates a cause of action for third-party retaliation on behalf of friends and family members

who have not engaged in protected activity. The majority has accepted this dubious invitation. In

doing so, the majority rewrites the law. Although the majority admits begrudgingly that “a literal

reading of section 704(a) suggests a prohibition on employer retaliation only when it is directed to

the individual who conducted the protected activity,” the majority refuses to implement the

unambiguous text of the statute because, in their view, to do so would “defeat[] the plain purpose

of Title VII.” Majority slip op. at 3. 

I disagree with the majority’s faulty assumption that affirmance of the district court’s order

necessarily contradicts the underlying objectives of § 704(a). More fundamentally, I respectfully

dissent because I would enforce the plain language of the law, rather than its perceived purpose. 

III.

It is well established that to prevail upon a Title VII retaliation claim, a “plaintiff must show:

(1) that he engaged in activity protected by Title VII; (2) that he was the subject of adverse

employment action; and (3) that there exists a causal link between his protected activity and the

adverse action of his employer.” EEOC v. Ohio Edison Co., 7 F.3d 541, 543 (6th Cir. 1993) (citing

Jackson v. RKO Bottlers of Toledo, Inc., 743 F.2d 370, 375 (6th Cir. 1984)). 

In the present case, the district court ruled correctly that Thompson failed to establish the

first element because there was no evidence that he had engaged in any sort of protected activity.

Instead, Thompson’s theory of recovery was that he was punished for a complaint brought by his

then-fiancée. The district court reviewed the statutory text and held that “under its plain language,

the statute does not authorize a retaliation claim by a plaintiff who did not himself engage in

protected activity.” I agree. 

Previously, our only discussion of a similar issue had been limited to the dicta in EEOC v.

Ohio Edison Co., 7 F.3d 541 (6th Cir. 1993), and Bell v. Safety Grooving & Grinding, L.P., 107 F.

App’x 607 (6th Cir. 2004) (unpublished).1

 However, neither of these cases resolved the present

question. In Ohio Edison, we held that an employee may engage vicariously in protected activity

by and through the actions of his agent, and, in Bell, we held that the plaintiff’s non-specific

complaints to management were insufficient to trigger protection for him in connection with his

girlfriend’s EEOC discrimination charge. 

Although our court has not addressed directly the precise issue at hand, the Fifth, Eighth, and

Third Circuit Courts of Appeal have unanimously rejected such third-party retaliation claims.
No. 07-5040 Thompson v. North American Stainless Page 9

2

The test for retaliation under the ADEA is the same as the test for Title VII retaliation. Compare Shirley v.

Chrysler First, Inc., 970 F.2d 39, 42 (5th Cir. 1992) (elements of ADEA retaliation claim) with Ohio Edison, 7 F.3d at

543 (elements of Title VII retaliation claim); see also 29 U.S.C. § 623(d). 

3

The EEOC filed an amicus brief in Fogleman and unsuccessfully raised the same arguments before the Third

Circuit that it makes in the present case. See brief of EEOC as Amicus Curiae in support of Appellant, Fogleman v.

Mercy Hosp., 283 F.3d 561 (3d Cir. 2002) (No. 00-2263), 2001 WL 34119171. 

In Holt v. JTM Industries, 89 F.3d 1224 (5th Cir. 1996), a former employee claimed that he

was fired because his wife, who worked for the same company, had filed a complaint under the Age

Discrimination in Employment Act (“ADEA”).2 The plaintiff in Holt relied upon De Medina v.

Reinhardt, 444 F. Supp. 573 (D.D.C. 1978), aff’d in part, remanded in part, 686 F.2d 997 (D.C. Cir.

1982), in support of his position that protecting one spouse from retaliation for the other spouse’s

protected complaint was necessary to preserve the intent of Congress. Holt, 89 F.3d at 1226. The

Court of Appeals for the Fifth Circuit rejected this argument, reasoning that while “[s]uch a rule of

automatic standing might eliminate the risk that an employer will retaliate against an employee for

their spouse’s protected activities,” it would “contradict the plain language of the statute and will

rarely be necessary to protect employee spouses from retaliation.” Id. at 1226. 

The Holt court recognized the risk of its holding, but found that the statutory language is the

law that “define[s] the types of relationships that should render automatic standing . . . .” Id. at

1227. The court noted that the plain language of the statute will protect most close relationships,

because “[i]n most cases, the relatives and friends who are at risk for retaliation will have

participated in some manner in a co-worker’s charge of discrimination.” Id. If there is any

participation, then the relative or friend of the complaining party is protected by the plain language

of the statute. Id. Thus, the statute denies protection only to those friends or relatives of a

complaining employee who have not participated with the complaint. Id. In the instant case,

Thompson does not claim to have assisted Regalado in preparing her suit. If he had, then he would

be protected by the terms of the statute.

The Eighth Circuit employed this rationale in Smith v. Riceland Foods, Inc., 151 F.3d 813

(8th Cir. 1998). The plaintiff in Smith urged the court to expand Title VII to “prohibit employers

from taking adverse action against employees whose spouses or significant others have engaged in

statutorily protected activity.” Id. at 819. The court rejected such a construction, concluding that

it “is neither supported by the plain language of Title VII nor necessary to protect third parties, such

as spouses or significant others from retaliation.” Id. (citing Holt, 89 F.3d at 1226-27). “Title VII

already offers broad protection to such individuals by prohibiting employers from retaliating against

employees for assisting or participating in any manner in a proceeding under Title VII. Accordingly,

we hold that a plaintiff bringing a retaliation claim under Title VII must establish that she personally

engaged in the protected conduct.” Id. (internal quotations and alterations omitted). 

In Fogleman v. Mercy Hospital, 283 F.3d 561 (3d Cir. 2002), the Court of Appeals for the

Third Circuit addressed the issue of third-party retaliation in a substantially similar context. The

plaintiff sued under the Americans with Disabilities Act (“ADA”), the ADEA, and a Pennsylvania

statute, alleging that he was fired in retaliation for his father’s discrimination complaint against their

joint employer. As a preliminary matter, the Fogleman court noted that the anti-retaliation

provisions of the ADA and the ADEA are nearly identical to each other and to the anti-retaliation

provision of Title VII. Id. at 567 (citing Krouse v. American Sterilizer Co., 126 F.3d 494, 500 (3d

Cir. 1997)). Thus, the “precedent interpreting any one of these statutes is equally relevant to

interpretation of the others.” Id. The Fogleman court emphatically rejected the notion of ambiguity:

“Read literally, the statutes are unambiguous – indeed, it is hard to imagine a clearer way of

specifying that the individual who was discriminated against must also be the individual who

engaged in protected activity.” Id. at 568.3

 The court conceded that the case “presents a conflict
No. 07-5040 Thompson v. North American Stainless Page 10

4

The court mentioned that it did not find these plausible policy reasons to be particularly persuasive, but was

still required to defer to Congress in the crafting of statutes. See id.

between a statute’s plain meaning and its general policy objectives,” id. at 569, but held that when

presented with such a conflict, respect for the separation-of-powers required it to implement the

statutory text. Id. 

The Third Circuit rejected the notion that enforcing the plain meaning of the statute would

lead to dire results. In fact, it stated that there “are at least plausible policy reasons why Congress

might have intended to exclude third-party retaliation claims.”4 Id. For instance, Congress could

have thought that friends or relatives who would be at risk of retaliation would have likely

participated in some manner in the protected discrimination charge. If so, then the class of people

that would be available for employers to retaliate against would be quite small and limited to friends

and relatives of employees that filed a protected complaint, but who were not close enough to the

protected employee to have assisted with the complaint in any manner. Id. Congress also could

have feared that allowing third-party retaliation claims would “open the door to frivolous lawsuits

and interfere with an employer’s prerogative to fire at-will employees.” Id. at 570. 

In sum, before today, no circuit court of appeals has held that Title VII creates a claim for

third-party retaliation. Although plaintiff and the EEOC argue that the language of § 704(a) is

ambiguous and that enforcement of the statutory text will lead to absurd results, I disagree, as do the

Third, Fifth, and Eighth Circuits, which have soundly rejected such a cause of action. Indeed, the

only division that exists is between the circuit courts that have rejected third-party retaliation claims

and a handful of district courts that have created this new federal cause of action. The obiter dictum

seized upon by the majority from a scattering of these latter cases does not represent an established

mode of statutory construction. 

In enacting Title VII, Congress addressed the issue of retaliation. The statute at issue is not

silent regarding who falls within the scope of its protection. While it does not state that third parties

are not protected, it is framed in the positive identifying those individuals who are protected, thus

limiting the class of claimants to those who actually engaged in the protected activity. The

appropriate question is not whether Congress considered the specific facts at issue in the instant

case, but whether plaintiff is included within the class of persons protected by the statute. We must

look to what Congress actually enacted, not what we believe Congress might have passed were it

confronted with the facts at bar. Congress drew the boundaries of protection from retaliation when

it enacted § 2000e-3(a). In creating a new federal cause of action for retaliation, it was not absurd

for Congress to limit the class of persons who are entitled to sue to employees who personally

opposed a practice, made a charge, assisted, or participated in an investigation. 

IV.

Next, plaintiff argues that the court should defer to the EEOC’s interpretation of Title VII

in the EEOC Compliance Manual. In effect, the majority has done so by adopting the EEOC’s

undefined class of “related to or associated with” persons. All persons, no matter how loosely

related or “associated” to the person who engaged in the protected activity, may sue for retaliation

if they can show that adverse action taken against them would “discourage” the employee who

actually engaged in the protected activity from exercising his rights. This expanded class of

potential plaintiffs could lead to a proliferation of new retaliation lawsuits. Whether public policy

warrants such litigation is a decision for Congress, not the courts. 

Plaintiff cites Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-45

(1984), for the proposition that “administrative interpretations of ambiguous statutes are entitled to
No. 07-5040 Thompson v. North American Stainless Page 11

substantial deference.” The Chevron analysis, colloquially referred to as the “Chevron two-step,”

requires the following analysis:

The Chevron two-step process requires the court to ask “whether the statute is silent

or ambiguous with respect to the specific issue before it; if so, the question for the

court [is] whether the agency’s answer is based on a permissible construction of the

statute.” 

Singh v. Gonzales, 451 F.3d 400, 404 (6th Cir. 2006) (citation and quotation marks omitted)).

Because, as explained above, § 704(a) is not ambiguous, Chevron deference is not applicable.

Even assuming arguendo that the statute is ambiguous, we should not defer to the EEOC’s

Compliance Manual to interpret Title VII. Most courts have rejected the notion that the EEOC

Compliance Manual deserves deference. See, e.g., Rainer v. Refco, Inc., 464 F. Supp. 2d 742, 751

(S.D. Ohio 2006) (refusing to defer to the EEOC’s manual because “an agency’s interpretation of

a statute is not entitled to deference where it conflicts with the plain meaning of the statutory

language.”); Singh v. Green Thumb Landscaping, Inc., 390 F. Supp. 2d 1129, 1137-38 (M.D. Fla.

2005) (“This provision of the Manual is entirely lacking in the extensive analysis and thoroughness

necessary to be entitled to substantial deference by the Court. Ultimately, the responsibility is with

the Court, not with an administrative body, to interpret the provisions of Title VII in accordance with

the explicit legislative enactments set out by the Congress.”) (citation omitted). 

Furthermore, the interpretation proffered by the EEOC is in its own compliance manual, not

a regulation that was promulgated after formal notice-and-comment rulemaking. The Supreme

Court has noted that such “interpretations” do not carry the force of law and are not worthy of

Chevron deference:

Interpretations such as those in opinion letters – like interpretations contained in

policy statements, agency manuals, and enforcement guidelines, all of which lack the

force of law – do not warrant Chevron-style deference. See, e.g., Reno v. Koray, 515

U.S. 50, 61 (1995) (internal agency guideline, which is not “subject to the rigors of

the Administrative Procedur[e] Act, including public notice and comment,” entitled

only to “some deference” (internal quotation marks omitted)); EEOC v. Arabian

American Oil Co., 499 U.S. 244, 256-258 (1991) (interpretative guidelines do not

receive Chevron deference); Martin v. Occupational Safety and Health Review

Comm’n, 499 U.S. 144, 157 (1991) (interpretative rules and enforcement guidelines

are “not entitled to the same deference as norms that derive from the exercise of the

Secretary's delegated lawmaking powers”). See generally 1 K. DAVIS & R. PIERCE, ADMINISTRATIVE LAW TREATISE § 3.5 (3d ed. 1994). Instead, interpretations

contained in formats such as opinion letters are “entitled to respect” under our

decision in Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944), but only to the extent

that those interpretations have the “power to persuade.”

Christensen v. Harris County, 529 U.S. 576, 587 (2000).

The EEOC cannot expand its own authority by simply publishing a compliance manual and

expect the court to defer to its view that the statute means more than what the statutory language

supports. Moreover, at oral argument, counsel for the EEOC conceded that, in the present case, its

compliance manual is not entitled to Chevron deference. 
No. 07-5040 Thompson v. North American Stainless Page 12

5

Arlington Central Sch. Dist. Bd. of Ed. v. Murphy, 126 S. Ct. at 2459; Hartford Underwriters Ins. Co. v. Union

Planter Bank, N.A., 530 U.S. at 6; Connecticut Nat. Bank v. Germain, 503 U.S. at 253-54. 

V.

In conclusion, the unambiguous text of the statute, not its anticipated purpose, is the law.5

By rewriting the Civil Rights Act to conform it to their preference for public policy, the majority has

assumed the role of the legislature and usurped the authority granted to Congress by the

Constitution. 

For these reasons, I respectfully dissent. I would affirm the judgment of the district court.