1

United States Court of Appeals,

Fifth Circuit.

No. 95-50145.

Frank HOLT; Linda Holt, Plaintiffs-Appellees,

v.

JTM INDUSTRIES, INC., Defendant-Appellant,

and

USPCI Inc., Defendant.

Aug. 7, 1996.

Appeal from the United States District Court for the Western

District of Texas.

Before GARWOOD, EMILIO M. GARZA and DENNIS, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Defendant JTM Industries, Inc. ("JTM") appeals from the

district court's denial of its motion for judgment as a matter of

law. We reverse and dismiss the case with prejudice.

I

Plaintiffs Linda and Frank Holt were employees at JTM's

Limestone Facility ("Facility") in Jewett, Texas. After JTM

terminated Linda, she filed a charge of age discrimination with the

Equal Employment Opportunity Commission ("EEOC") and the Texas

Commission on Human Rights ("TCHR"). Approximately two weeks after

JTM received notice of Linda's administrative complaint, Frank was

placed on paid administrative leave. Frank was subsequently

offered another job with JTM in Atlanta which he accepted, but then

voluntarily quit after several weeks.

Linda and Frank Holt filed a complaint against JTM and its
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parent corporation, USPCI, alleging, inter alia, violations of

their rights under the Age Discrimination in Employment Act of 1967

("ADEA"). Specifically, the Holts alleged age discrimination,

pursuant to 29 U.S.C. § 621, and retaliation against Frank for

Linda's administrative complaint of age discrimination, pursuant to

29 U.S.C. § 623(d). The claims that survived summary judgment were

tried before a jury. At the close of evidence, the district court

refused to submit any of the Holts' claims against USPCI to the

jury, denied JTM's motion for judgment as a matter of law, and

submitted the Holts' claims against JTM to the jury. The jury

rejected all of the Holts' claims against JTM, except for Frank's

claim of retaliation. The district court entered judgment in

conformity with the jury verdict, implicitly denying JTM's third

motion for judgment as a matter of law. JTM filed a timely notice

of appeal.

II

JTM argues that the district court erred in denying its

motion for judgment as a matter of law. We review a district

court's disposition of a motion for judgment as a matter of law de

novo. Wardlaw v. Inland Container Corp., 76 F.3d 1372, 1375 (5th

Cir.1996). We must consider all of the evidence "in the light and

with all reasonable inferences most favorable to the party opposed

to the motion." Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th

Cir.1969) (en banc). There must be a conflict of substantial

evidence to create a jury question. Id. at 375.

Section 623(d) of the ADEA protects employees from
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retaliation for opposing acts of age discrimination, or for

charging, testifying, assisting, or participating in any manner in

an investigation, proceeding, or litigation under the ADEA. 29

U.S.C. § 623(d). A plaintiff establishes a prima facie case of

retaliation under the ADEA by showing: (1) that he engaged in

activity protected by the ADEA; (2) that there was an adverse

employment action; and (3) that there was a causal connection

between the participation in the protected activity and the adverse

employment decision. Shirley v. Chrysler First, Inc., 970 F.2d 39,

42 (5th Cir.1992).

JTM alleges that the district court erred in denying its

motion for judgment as a matter of law because Frank did not engage

in an activity that is protected by the ADEA. Specifically, JTM

argues that Frank did not oppose JTM's practices which Linda

alleged were discriminatory, nor did he make a charge, testify,

assist or participate in any manner in Linda's age discrimination

complaint, as required under 29 U.S.C. § 623(d). The Holts do not

argue that Frank participated in Linda's filing a charge of age

discrimination. Instead, they argue that Linda's charge of age

discrimination, which is protected activity under the ADEA, should

be imputed to her husband Frank.

The plain language of § 623(d) prohibits an employer from

retaliating against an employee because "such individual" has

opposed a practice prohibited by the ADEA or has participated "in

any manner" in a proceeding under the ADEA. This section permits

third parties to sue under § 623(d) if they have engaged in the
 

1The anti-retaliation provisions of the ADEA and Title VII are

similar and "cases interpreting the latter provision are frequently

relied upon in interpreting the former." Shirley, 970 F.2d at 42

n. 5. 

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enumerated conduct, even if the conduct was on behalf of another

employee's claim of discrimination. See Jones v. Flagship Intern.,

793 F.2d 714, 727 (5th Cir.1986) (acknowledging that "employee

opposition to discriminatory employment practices directed against

a fellow employee may constitute" protected activity under the

anti-retaliation provision of Title VII), cert. denied, 479 U.S.

1065, 107 S.Ct. 952, 93 L.Ed.2d 1001 (1987); Mandia v. ARCO

Chemical Co., 618 F.Supp. 1248, 1250 (W.D.Pa.1985) (holding that

husband could sue under the anti-retaliation provision of Title VII

because he "participated, supported and aided his wife in filing"

EEOC charges of sexual harassment).1 The Holts urge an even

broader interpretation of § 623(d). They argue that an individual

suing for retaliation need not personally engage in any of the

enumerated conduct in § 623(d). Instead, the Holts contend that

once an employee's spouse engages in protected activity, the

non-complaining spouse automatically has standing to sue for

retaliation under § 623(d). This interpretation is necessary,

according to the Holts, to eliminate the risk that an employer will

discriminate against a complaining employee's spouse in retaliation

for the complaining employee's protected activities.

The Holts cite De Medina v. Reinhardt, 444 F.Supp. 573

(D.D.C.1978), as support for their position. The plaintiff in De

Medina sued under the anti-retaliation provision of Title VII for
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retaliation against her because of her husband's

anti-discrimination activities. De Medina, 444 F.Supp. at 574.

The district court concluded that "tolerance of third-party

reprisals would, no less than tolerance of direct reprisals, deter

persons from exercising their protected rights under Title VII,"

which would be contrary to legislative intent. Id. at 580.

Therefore, the court held that a plaintiff could sue for

retaliation for a relative's or friend's protected activities. It

is unclear from the district court's statement of facts whether the

plaintiff participated in any manner in her husband's activities.

To the extent that this case stands for the proposition that a

plaintiff automatically has standing to sue for retaliation when a

relative or friend engages in protected activity, we disagree.

Such a rule of automatic standing might eliminate the risk

that an employer will retaliate against an employee for their

spouse's protected activities. However, we conclude that such a

rule would contradict the plain language of the statute and will

rarely be necessary to protect employee spouses from retaliation.

Section 623(d) prohibits retaliation against an employee who has

opposed a discriminatory practice or has participated "in any

manner" in a proceeding under the ADEA. This broad language is

consistent with Congress's remedial goals in enacting the ADEA.

Congress intended the anti-retaliation provision of the ADEA to

enable employees to engage in protected activities without fear of

economic retaliation. See E.E.O.C. v. Ohio Edison Co., 7 F.3d 541,

544 (6th Cir.1993) (stating that the purpose of the ADEA "is to
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prevent fear of economic retaliation from inducing employees

"quietly to accept [unlawful] conditions' ") (alteration in

original) (quoting Mitchell v. Robert DeMario Jewelry, Inc., 361

U.S. 288, 292, 80 S.Ct. 332, 335, 4 L.Ed.2d 323 (1960)). To

accomplish this goal, Congress drafted § 623(d) to give those

employees who oppose discriminatory practices or who participate

"in any manner in an investigation [or] proceeding" under the ADEA

automatic standing to sue if their employers retaliate against them

for their actions.

 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.

However, we believe that the language that Congress has employed in

§ 623(d) will better protect employees against retaliation than we

could by trying to define the types of relationships that should

render automatic standing under § 623(d). If we hold that spouses

have automatic standing to sue their employers for retaliation, the

question then becomes, which other persons should have automatic

standing to guard against the risk of retaliation? In 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. The plain language of § 623(d) will protect these

employees from retaliation for their protected activities.

However, when an individual, spouse or otherwise, has not

participated "in any manner " in conduct that is protected by the

ADEA, we hold that he does not have automatic standing to sue for
 

2The only other circuit case that has addressed a similar

issue is not inconsistent with our interpretation of § 623(d).

Interpreting the anti-retaliation provision of Title VII, 42 U.S.C.

§ 2000e-3(a), the Sixth Circuit held that an employee is protected

from retaliation where the employee's representative opposes a

discriminatory practice. E.E.O.C. v. Ohio Edison Co., 7 F.3d 541,

545 (6th Cir.1993). The plaintiff in Ohio Edison alleged that his

employer had discriminated against him by withdrawing an offer of

reinstatement "because a co-employee engaged in protected activity

and protested [the plaintiff's] discriminatory discharge on his

behalf and threatened that a claim would be filed for the

discriminatory discharge." Id. at 546 (emphasis added). The fact

that the employee had engaged a "representative" to act on his

behalf to protest his discharge illustrates that the employee had

opposed a discriminatory employment practice, as required under the

anti-retaliation provision of Title VII. Therefore, unlike Frank

Holt, the plaintiff in Ohio Edison fell within the plain meaning of

the statute as one who has standing to sue for retaliation. 

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retaliation under § 623(d) simply because his spouse has engaged in

protected activity.2

The evidence at trial revealed that Frank was not aware of

Linda's intent to file a charge of age discrimination against JTM

until a few days before she actually made the charge. He testified

that when TCHR mailed Linda a copy of the notice of the filing and

service of her complaint, he retrieved it from the post office and

looked at it with her. Frank's only other involvement with Linda's

protected activities involved carrying out his duties as an

employee. The TCHR served the notice of Linda's complaint on JTM

to Frank's attention as Plant Manager. Frank testified that he

never opened the notice, but he assumed that it contained Linda's

complaint. After receiving the notice, Frank called the Manager of

Human Resources for JTM, Debbie Bankston, and told her that JTM had

been served with papers from the TCHR. Frank testified that he

followed Ms. Bankston's orders and sent the notice via Federal
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Express to JTM's Human Resources Department.

This evidence does not establish that Frank participated in

Linda's protected activities or that he opposed JTM's alleged

discriminatory practice. There is no evidence that Frank helped

Linda prepare her charge or that he assisted in any way in its

filing. At best, Frank was a passive observer of Linda's protected

activities. As such, he does not have standing to sue for

retaliation under § 623(d).

III

For the foregoing reasons, we REVERSE the judgment of the

district court and DISMISS the case with prejudice.

DENNIS, Circuit Judge, dissenting:

Frank Holt proved to the satisfaction of a jury that his

employer engaged in adverse employment actions against him in

retaliation for his wife's filing of a claim under the Age

Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq.

Nonetheless, the majority holds that Mr. Holt lacks "standing" to

sue under that Act's anti-retaliation provision because he did not

prove that he personally engaged in the protected conduct giving

rise to the employer's wrongful action. Because the majority

relies on the concept of standing as the basis of its reversal,

when at best it has presented an argument that Mr. Holt has no

cause of action under the statute; because the decision imposes a

rigid literalism in its interpretation of the anti-retaliation

provision that undermines the purpose of the statute; and because

the opinion ignores relevant case law and agency decisions
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construing the similar anti-retaliation provision of Title VII to

provide a cause of action for retaliation against an employee for

the protected activity of that employee's family member, I dissent.

The question of standing "[i]n essence ... is whether the

litigant is entitled to have the court decide the merits of the

dispute or of particular issues. This inquiry involves both

constitutional limitations on federal-court jurisdiction and

prudential limitations on its exercise." Warth v. Seldin, 422 U.S.

490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). The

constitutional dimension of standing "imports justiciability:

whether the plaintiff has made out a "case or controversy' between

himself and the defendant within the meaning of Art. III." Id.,

422 U.S. at 498, 95 S.Ct. at 2205. The Supreme Court has

formulated a three-part test to determine whether the plaintiff has

standing for purposes of Article III, requiring the plaintiff to

allege (1) an actual or threatened injury that is (2) traceable to

the conduct of the defendant and (3) is likely to be redressed by

a favorable judicial decision. Lujan v. Defenders of Wildlife, 504

U.S. 555, 560-61, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992);

see 6A Moore's Federal Practice § 57.11[2.-1], at 57-89. Because

the requirement of injury is part of the Article III constitutional

test for standing, Congress may not authorize suit in the absence

of an injury. Lujan, supra. However, as the Lujan Court noted,

Congress is empowered to create substantive rights and to authorize

suit for their enforcement and consequently may define an injury in

a way that provides the basis for standing even in the absence of
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other injury to the plaintiff. See, e.g., Havens Realty Corp. v.

Coleman, 455 U.S. 363, 373, 102 S.Ct. 1114, 1121, 71 L.Ed.2d 214

(1982).

In addition to the minimum constitutional requirements, the

Court has recognized other limits on the class of persons who may

invoke the federal judicial power. Warth, 422 U.S., at 499, 95

S.Ct., at 2205. These prudential considerations are self-imposed

judicial limits on the exercise of federal jurisdiction and include

the following requirements: (1) that a litigant generally assert

his own and not another's interests; (2) that the federal courts

not adjudicate mere generalized grievances that are more

appropriately addressed by the representative branches of

government; and (3) that the plaintiff's alleged injury arguably

fall within the "zone of interests" protected by the law invoked.

Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82

L.Ed.2d 556 (1984); Warth, 422 U.S. at 499-500, 95 S.Ct. at 2205.

Although Congress may not remove the Article III requirement that

the plaintiff allege a distinct and palpable injury to himself, it

can grant standing to persons who meet Article III requirements

even though they would otherwise be barred by prudential standing

considerations. Id. at 501, 95 S.Ct. at 2206.

Section 7(c) of the ADEA provides that "[a]ny person aggrieved

may bring a civil action in any court of competent jurisdiction for

such legal or equitable relief as will effectuate the purposes of

this Act...." 29 U.S.C. § 626(c)(1) (emphasis supplied). Through

this language, Congress indicated its intent to afford standing to
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the full limits permitted under Article III. In Trafficante v.

Metropolitan Life Ins. Co., 409 U.S. 205, 209, 93 S.Ct. 364, 367,

34 L.Ed.2d 415 (1972), the Supreme Court construed the term

"aggrieved person" in § 810 of the Fair Housing Act, which the Act

defined to include "[a]ny person who claims to have been injured by

a discriminatory housing practice," 42 U.S.C. § 3610(a), to

demonstrate a congressional intent to confer standing to the

fullest extent permitted by Article III of the United States

Constitution. In reaching this conclusion, the Court relied on the

holding in Hackett v. McGuire Bros., 445 F.2d 442 (3rd Cir.1971),

that the language of Title VII authorizing the filing of suits "by

a person claiming to be aggrieved" shows " "a congressional

intention to define standing as broadly as is permitted by Article

III of the Constitution.' " Trafficante, 409 U.S., at 209, 93

S.Ct. at 367 (quoting Hackett, 445 F.2d at 446). This court, in

turn, applied Trafficante to find that "the strong similarities

between the language, design, and purposes of Title VII and the

Fair Housing Act require that the phrase "a person claiming to be

aggrieved' in § 706 of Title VII must be construed in the same

manner that Trafficante construed the term "aggrieved person' in §

810 of the Fair Housing Act." EEOC v. Mississippi College, 626

F.2d 477, 482 (5th Cir.1980) (citing EEOC v. Bailey Co., 563 F.2d

439, 450-54 (6th Cir.1977), cert. denied, 435 U.S. 915, 98 S.Ct.

1468, 55 L.Ed.2d 506 (1978); Waters v. Heublein, 547 F.2d 466,

469-70 (9th Cir.1976), cert. denied, 433 U.S. 915, 97 S.Ct. 2988,

53 L.Ed.2d 1100 (1977)), cert. denied, 453 U.S. 912, 101 S.Ct.
 

3Even if prudential standing considerations were factors, Mr.

Holt has adequately established that he could clear these hurdles

as well. He has sued to redress injuries he personally suffered as

a result of the adverse employment actions his employer engaged in

through its retaliation against him for Mrs. Holt's protected

conduct, and thus cannot be said to be asserting the rights of

others. Similarly, he does not present a "generalized grievance,"

as he complains of specific harm the employer directed at him.

Although the majority does not undertake a standing analysis, its

determination that Mr. Holt does not have standing because he did

not prove involvement in his wife's protected activity appears best

explained as a conclusion that Mr. Holt is not within the "zone of

interests" protected by the ADEA. However, as the Supreme Court

pointed out in Clarke v. Securities Industry Ass'n., 479 U.S. 388,

400 n. 16, 107 S.Ct. 750, 757 n. 16, 93 L.Ed.2d 757 (1987), the

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3143, 69 L.Ed.2d 994 (1981). See also Fair Employment Council v.

BMC Marketing Corp., 28 F.3d 1268, 1278 (D.C.Cir.1994) (citing Gray

v. Greyhound Lines, 545 F.2d 169, 176 (D.C.Cir.1976)).

Following this line of reasoning, the pertinent language of

the ADEA, "[a]ny person aggrieved may bring a civil action," 29

U.S.C. § 626(c)(1), similarly indicates that Congress intended to

provide standing under the Act to the fullest extent available

under Article III. See Horne v. Firemen's Retirement System of St.

Louis, 69 F.3d 233, 235 (8th Cir.1995) (plaintiff satisfying

Article III requirements has standing under the ADEA); Barchers v.

Union Pacific Railroad Co., 765 F.Supp. 595, 596-97 (W.D.Mo.1991)

(same). Accordingly, any "person aggrieved" is required by the

ADEA to meet only the minimum constitutional standing requirements

of Article III. Mr. Holt clearly satisfies these minimal standing

requirements for he alleged (1) that he was injured (2) as a result

of the defendant's conduct and (3) a favorable decision granting

him compensatory and/or injunctive relief is likely to redress his

injuries.3
"zone of interest" test has primarily been applied in claims

brought under the Administrative Procedure Act and "is most

usefully understood as a gloss on the meaning of § 702 [of that

Act].... While inquiries into reviewability or prudential standing

in other contexts may bear some resemblance to a "zone of interest'

inquiry under the APA, it is not a test of universal application."

Nonetheless, assuming its applicability here, Mr. Holt, as an

employee within the meaning of the ADEA who has alleged injury to

himself from his employer's retaliatory conduct in violation of the

Act, clearly satisfies any requirement that he be arguably within

the zone of interest of the ADEA. The "zone of interest" test only

"denies a right of review if the plaintiff's interests are so

marginally related to or inconsistent with the purposes implicit in

the statute that it cannot reasonably be assumed that Congress

intended to permit the suit." Id. at 399, 107 S.Ct. at 757; see

also City of Milwaukee v. Block, 823 F.2d 1158, 1165-66 (7th

Cir.1987) (discussing Clarke 's clarification of test). 

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In finding that Mr. Holt lacks standing to sue, the majority

has confused the concepts of standing and cause of action. As the

Supreme Court explained in Davis v. Passman, 442 U.S. 228, 239 n.

18, 99 S.Ct. 2264, 2274 n. 18, 60 L.Ed.2d 846 (1979):

[S]tanding is a question of whether a plaintiff is

sufficiently adversary to a defendant to create an Art. III

case or controversy, or at least to overcome prudential

limitations on federal court jurisdiction, see Warth v.

Seldin, 442 U.S. 490, 498, 95 S.Ct. 2197, 2204, 45 L.Ed.2d 343

(1975); cause of action is a question of whether a particular

plaintiff is a member of the class of litigants that may, as

a matter of law, appropriately invoke the power of the

court....

In Davis, the Court determined that the appellate court had

confused the question of whether petitioner had standing with the

question of whether she had asserted a proper cause of action. The

Court observed that while "[t]he nature of petitioner's injury ...

is relevant to the determination of whether she has "alleged such

a personal stake in the outcome of the controversy as to assure

that concrete adverseness which sharpens the presentation of issues

upon which the court so largely depends for illumination of
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difficult constitutional questions,' ... [w]hether petitioner has

asserted a cause of action ... depends not on the quality or extent

of her injury, but on whether the class of litigants of which

petitioner is a member may use the courts to enforce the right at

issue." Id., 442 U.S. at 241 n. 18, 99 S.Ct. at 2274 n. 18

(quoting Baker v. Carr, 369 U.S. at 204, 82 S.Ct. at 703).

The majority's conclusion that a victim of adverse employment

actions conducted in retaliation for the protected activity of the

victim's family member lacks standing to sue unless the victim

alleges and proves actual involvement in the protected conduct is

more appropriately viewed as a determination that a victim who

suffers retaliatory actions for no reason other than his or her

relationship to the person engaging in protected conduct is not a

member of a class the ADEA is intended to protect and thus has no

cause of action. This conclusion relies on a rigid, literal

interpretation of the ADEA's anti-retaliation provision that

undermines the broad purposes of the statute.

Congress enacted the ADEA in 1967 as part of an ongoing effort

to eradicate discrimination in the workplace. McKennon v.

Nashville Banner Publishing Co., --- U.S. ----, ----, 115 S.Ct.

879, 884, 130 L.Ed.2d 852 (1995) (citing Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e et seq.; the Americans with

Disability Act of 1990 (ADA), 42 U.S.C. § 12101 et seq., the

National Labor Relations Act, 29 U.S.C. § 158(a) and the Equal Pay

Act of 1963, 29 U.S.C. § 206(d)); see Hodgson v. First Federal

Savings and Loan Ass'n of Broward County, Fl., 455 F.2d 818, 820
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(5th Cir.1972). The ADEA, like most of these anti-discrimination

statutes, contemplates both agency and private action to enforce

its provisions. See 29 U.S.C. § 626; see, e.g., 42 U.S.C. §

2000e-5 (Title VII); 42 U.S.C. § 12117 (ADA). As a means of

promoting its broad anti-discrimination goals, the Act prohibits an

employer from engaging in adverse employment action in retaliation

for its employee's protected conduct. See 29 U.S.C. 623(d); see,

e.g., 42 U.S.C. § 2000e-3 (Title VII); 42 U.S.C. § 12206 (ADA).

Under the ADEA, federal courts have discretion to "grant such legal

or equitable relief as may be appropriate to effectuate the

purposes of [the Act]." 29 U.S.C. § 626(b); McKennon, --- U.S. at

----, 115 S.Ct. at 884.

The anti-retaliation provisions of the ADEA and similar

statutes clearly are intended to encourage the enforcement of

rights protected under the statutes. As this court has observed in

recognizing a claim for retaliation under 42 U.S.C. § 1981, "[w]ere

we to protect retaliatory conduct, we would in effect be

discouraging the filing of meritorious civil rights suits and

sanctioning further discrimination against those persons willing to

risk their employer's vengeance by filing suits." Goff v.

Continental Oil Co., 678 F.2d 593, 598 (5th Cir.1983). See also

EEOC v. Cosmair, Inc., L'Oreal Hair Care Div., 821 F.2d 1085, 1088

(5th Cir.1987) (purpose of anti-retaliation provision of ADEA is

"to protect persons who "resort[ ] to the legal procedures that

Congress has established in order to right congressionally

recognized wrongs,' East v. Romine, Inc., 518 F.2d 332, 340 (5th
16

Cir.1975)."); Malarkey v. Texaco, Inc., 983 F.2d 1204, 1214 (2nd

Cir.1993) ("The purpose of the ADEA's anti-retaliation provision is

to protect persons who initiate a suit to vindicate a right that

Congress has recognized as a wrong."); cf. Mitchell v. Robert

DeMario Jewelry, Inc., 361 U.S. 288, 292, 80 S.Ct. 332, 335, 4

L.Ed.2d 323 (1960) (observing in relation to anti-retaliation

provision of Fair Labor Standards Act that "[b]y the proscription

of retaliatory acts set forth in § 15(a)(3), and its enforcement in

equity by the Secretary pursuant to § 17, Congress sought to foster

a climate in which compliance with the substantive provisions of

the Act would be enhanced."); Jones v. Flagship International, 793

F.2d 714, 725 (5th Cir.1986) (recognizing that the provisions of

Title VII "must be construed broadly in order to give effect to

Congress' intent in eliminating invidious employment practices,"

and that "since the enforcement of Title VII rights necessarily

depends on the ability of individuals to present their grievances

without the threat of retaliatory conduct by their employers, rigid

enforcement of [Title VII's anti-retaliation provision] is

required."), cert. denied, 479 U.S. 1065, 107 S.Ct. 952, 93 L.Ed.2d

1001 (1987).

The jury in this case determined that the employer, JTM

Industries, Inc. (JTM), had replaced Frank Holt as plant manager in

retaliation for his wife's EEOC filing under the ADEA. The jury

thus found a causal connection between Mrs. Holt's EEOC filing and

the employer's replacement of Frank Holt. The majority's

determination that Mr. Holt nevertheless may not pursue a claim of
17

retaliation because he did not demonstrate that he personally was

engaged in protected conduct relies, as the majority admits, on a

strict reading of the anti-retaliation provision of the ADEA. That

provision, in pertinent part, provides:

It shall be unlawful for an employer to discriminate

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

because such individual ... has opposed any practice made

unlawful by this section, or because such individual ... has

made a charge, testified, assisted, or participated in any

manner in an investigation, proceeding, or litigation under

this Act.

29 U.S.C. § 623(d).

The majority's reading of the provision flouts the clear

purpose of the ADEA's prohibition of retaliatory conduct to ensure

that claimants are secure to pursue their claims of discrimination.

Under the majority's approach, in the instances when both an ADEA

complainant and his or her relative work for the same employee, the

anti-retaliation provision would not prevent the employer from

taking adverse employment action against the family member, even

though such action would be motivated by the relative's obvious

connection to the complainant, thereby defeating a central purpose

of the statute. The literal meaning of the anti-retaliation

provision should not be used to undermine the clear purpose and

intent of the ADEA. As the Supreme Court has observed:

It 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:

The general words used in the clause ... taken by

themselves, and literally construed, without regard to

the object in view, would seem to sanction the claim of

the plaintiff. But this mode of expounding a statute has

never been adopted by an enlightened tribunal because it
18

is evident that in many cases it would defeat the object

which the Legislature intended to accomplish. And 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....

Bob Jones University v. United States, 461 U.S. 574, 585, 103 S.Ct.

2017, 2025, 76 L.Ed.2d 157 (1983) (quoting Brown v. Duchesne, 19

How. 183, 194, 15 L.Ed. 595 (1857)) (emphasis supplied in Bob Jones

). See also Almendarez v. Barrett-Fisher Co., 762 F.2d 1275, 1278

(5th Cir.1985) ("literal statutory construction is inappropriate if

it would produce a result in conflict with the legislative purpose

clearly manifested in an entire statute or statutory scheme or with

clear legislative history.").

The federal anti-discrimination laws are to be liberally

construed to effectuate their remedial purposes. See, e.g.,

MacDonald v. Eastern Wyoming Mental Health Center, 941 F.2d 1115,

1118 (10th Cir.1991) ("the ADEA is remedial and humanitarian

legislation and should be liberally interpreted to effectuate the

congressional purpose of ending age discrimination.") (quoting

Dartt v. Shell Oil Co., 539 F.2d 1256, 1260 (10th Cir.1976), aff'd

434 U.S. 99, 98 S.Ct. 600, 54 L.Ed.2d 270 (1977)); Kale v.

Combined Ins. Co., 861 F.2d 746, 751 (1st Cir.1988) (same); Rabzak

v. County of Berks, 815 F.2d 17, 20 (3rd Cir.1987) (same);

Hamilton v. Rodgers, 791 F.2d 439, 442 (5th Cir.1986) ("Title VII

should be accorded a liberal interpretation in order to effectuate

the purpose of Congress to eliminate the inconvenience, unfairness,

and humiliation of ethnic discrimination.") (quoting Rogers v.
19

EEOC, 454 F.2d 234, 238 (5th Cir.1971), cert. denied, 406 U.S. 957,

92 S.Ct. 2058, 32 L.Ed.2d 343 (1972)). This canon of construction

holds true in the context of interpreting anti-retaliation

provisions. As the Sixth Circuit observed in EEOC v. Ohio Edison

Co., 7 F.3d 541, 545 (6th Cir.1993):

[C]ourts 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. 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.

See also McDonnell v. Cisneros, 84 F.3d 256, 262 (7th Cir.1996)

(eschewing a strict interpretation of Title VII's anti-retaliation

provision to find that an employer violated that statute by

retaliating against the plaintiff-supervisor for failing to prevent

subordinates from filing complaints under the statute). In

McDonnell, Judge Posner, writing for the court, acknowledged that

the plaintiff's claim did not come with the literal terms of Title

VII's anti-retaliatory provision, but explained:

The reasons for this wording ... so far as we are able to

discover (there is no pertinent legislative history), is that

in the ordinary case an employer would have no reason to

retaliate against someone who did not file a compliant,

testify, etc. Generally one retaliates against someone

because of something he did rather than because of something

someone else did. Not always. There is such a thing as

collective punishment. But that possibility is unlikely to

have been in the forefront of congressional thinking when the

retaliation provision was drafted.

Id. (emphasis original). In concluding that the plaintiff had a

valid retaliation claim, the court observed that it does no great

violence to the statutory language to correct Congress's oversight
 

4The opinion additionally observed that the plaintiff's

"passive opposition" to the employer's desire that he prevent his

subordinates from filing discrimination complaints could be

construed as "opposition" to an unlawful practice and

"participation" in protected conduct plainly covered by the

anti-retaliation provision. McDonnell, 84 F.3d at 262. 

20

by construing the provision to recognize the plaintiff's claim.4

Id.

The same holds true here. Situations in which spouses or

other related parties work for the same employer do not occur with

great frequency. The majority recognizes "a possible risk that an

employer will discriminate against a complaining employee's

relative or friend in retaliation for the complaining employee's

actions." Op. at ----. Nonetheless, my colleagues deem the risk

trivial compared to the potential harm of having courts "trying to

define the types of relationships that should render automatic

standing under § 623(d)." Id. at ---- - ----. The majority's

concerns about involving the courts in assessing what relationships

give rise to "standing" are both overblown and misplaced—the

ultimate focus in a retaliation claim such as this is not upon

whether a particular relationship exists between the victim of

retaliation and the individual who has engaged in protected

conduct; rather, the crucial issue is whether there is a causal

connection between the employer's adverse employment action against

the victim and the protected conduct engaged in by the relative or

friend. There is little reason to worry that a recognition of

claims such as Mr. Holt's will overburden federal judges when in

reality all that would be required is a simple modification of the
 

5The trial court's instructions on the retaliation claim were

as follows:

As to Frank Holt's retaliation claim, he must prove

the following elements by a preponderance of the

evidence:

1. That his wife filed a charge of discrimination

against Defendant:

2. That he was removed from the position of

Manager; and

3. That there was a causal connection between his

wife's filing a charge of discrimination and his

removal as Manager.

Record, Vol. XI, at 838. 

21

prima facie case applied to establish retaliation: Instead of

requiring the plaintiff to prove "(1) that he engaged in activity

protected by the ADEA; (2) that an adverse employment action

occurred; and (3) that a causal link between the participation in

the protected activity and the adverse employment decision exists,"

Ray v. Iuka Special Mun. Separate School Dist., 51 F.3d 1246, 1249

(5th Cir.1995) (citing Shirley v. Chrysler First, Inc., 970 F.2d

39, 42 (5th Cir.1992), the plaintiff would have to show (1) that an

employee engaged in activity protected by the ADEA; (2) that an

adverse employment action occurred to the plaintiff; and (3) that

a causal link between the participation in the protected activity

and the adverse employment decision exists. In this case, the jury

found that JTM replaced Frank Holt because his wife had filed an

EEOC claim.5 To condone such retaliation because it fails to fall

squarely within the literal terms of the anti-retaliation

provision, despite the ADEA's design to prohibit retaliation in
 

6The relevant provision of Title VII provides, in pertinent

part:

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

title, or because he has made a charge, testified,

assisted, or participated in any manner in an

investigation, proceeding, or hearing under this title.

42 U.S.C. § 2000e-3(a). 

22

order to promote the free exercise of rights protected under that

Act, elevates form over substance and permits employers to evade

the reach of the statute by making relatives or friends of

complaining parties the "whipping boys" for the protected conduct

of others.

Finally, the majority decision flies in the face of agency and

federal court decisions that hold that the parallel

anti-retaliation provision of Title VII prohibits the type of

conduct in which JTM engaged here. Although the majority

acknowledges that "the anti-retaliation provisions of the ADEA and

Title VII are similar and "cases interpreting the latter provision

are frequently relied upon in interpreting the former.' " Op. at

----, n. 1 (quoting Shirley v. Chrysler First, Inc., 970 F.2d 39,

42 n. 5 (5th Cir.1992)),6 it ignores the overwhelming weight of

decisions construing the anti-retaliation provision of Title VII to

provide a cause of action where an employer retaliates against the

plaintiff because of the protected conduct of a friend or relative.

As early as 1975, the EEOC recognized a violation of Title VII

when an employer discharged a husband in retaliation for his wife's
23

EEOC claim. EEOC Dec. No. 76-33 (Sept. 11, 1975), 1973-1983 CCH

EEOC Dec. ¶ 6626. In a subsequent case, the agency specifically

held that it had jurisdiction to investigate a claim that the

charging party had been discharged in retaliation for his wife's

filing a charge of discrimination against the employer. EEOC Dec.

77-34 (Aug. 16, 1977), 1973-1983 CCH EEOC Dec. ¶ 6581. The agency

observed that while the language of Title VII's anti-retaliation

provision does not directly determine the question of jurisdiction,

"[t]he language does manifest a congressional intent to extend

coverage over a broad base of activities," and acknowledged that

"where it can be shown that an employer discriminated against an

individual because he or she was related to a person who filed a

charge, it is clear that the employer's intent is to retaliate

against the person who filed the charge." Id. Consequently, the

agency concluded that "discrimination against an employee because

he or she has a familial relationship with a person who has filed

a charge of discrimination is violative of Section 704(a) of Title

VII." Id.

Additionally, the agency has formally articulated its position

on retaliation. Section 614 of its Interpretative Manual, in

pertinent part, provides:

§ 614.1 Introduction

(A) General—Section 704(a) of Title VII of the Civil

Rights Act of 1964, as amended, is intended to provide

"exceptionally broad protection" for protestors of

discriminatory employment practices. See Pettway v. American

Cast Iron Pipe Co., 411 F.2d 998, 1004-1005, 2 EPD § 10,011

(5th Cir.1969). Section 4(d) of the ADEA is virtually

identical to § 704(a) and provides the same protection....

(footnote omitted).
24

 * * * * * *

§ 614.3 Essential Elements of a Retaliation Violation

 * * * * * *

b) Opposition or Participation

 * * * * * *

... [A]s to both opposition and participation, the

retaliation provisions of Title VII and the ADEA also prohibit

retaliation against someone so closely related to the person

exercising his/her statutory rights that it would discourage

or prevent the person from exercising those rights. Clark v.

R.J. Reynolds Tobacco Co., 28 EPD § 32,500, (E.D.La.1982),

1982 WL 2277 (E.D.La.); see also Commission Decision No. 76-

33, CCH EEOC Decisions (1983) § 6626.

2 EEOC Compliance Manual § 614, at 614.0001 & 614.0008-614.0009

(Apr. 1988).

Further, federal courts addressing this issue have uniformly

concluded that an employer violates Title VII's anti-retaliation

provision by taking adverse employment action against an employee

because of the protected activity of a family member or friend. In

McKenzie v. Atlantic Richfield Co., 906 F.Supp. 572, 575

(D.Colo.1995), the court concluded that the plaintiff-husband had

a cause of action for his employer's adverse action against him in

retaliation for his wife's protected activity, observing that "[a]s

other courts have held ... the antireprisal provision of Title VII

precludes an employer from discriminating against an individual

because that person's spouse has engaged in protected activity."

Id. (citing Wu v. Thomas, 863 F.2d 1543 (11th Cir.1989); De Medina

v. Reinhardt, 444 F.Supp. 573 (D.D.C.1978)). See also Turman v.

Robertshaw Control Co., 869 F.Supp. 934, 941 (N.D.Ga.1994)

(recognizing that "[i]n a case of an alleged retaliation for
25

participation in a protected activity by a close relative who is a

co-employee, the first element of the prima facie case is modified

to require the plaintiff to show that the relative was engaged in

statutorily protected expression."); Clark v. R.J. Reynolds

Tobacco Co., Civ. No. 79-7, 1982 WL 2277, at *7 (E.D.La. Feb. 2,

1982) (finding prima facie case where plaintiff received reprimand

allegedly in retaliation for his son's EEOC filing); De Medina v.

Reinhardt, 444 F.Supp. 573, 580 (D.D.C.1978) (acknowledging that

Title VII does not expressly consider the possibility of

third-party reprisals, but concluding that "[s]ince third-party

reprisals would, no less than the tolerance of direct reprisals,

deter persons from exercising their protected rights under Title

VII, the Court must conclude, as has the only other court to

consider the issue, Kornbluh v. Stearns & Foster Co., 73 F.R.D.

307, 312 (N.D.Ohio 1976), that section 2000e-3 proscribes the

alleged retaliation of which plaintiff complains."). Cf. McDonnell

v. Cisneros, 84 F.3d 256, 262 (7th Cir.1996) (construing Title VII

to permit suit by one complaining of retaliation either for being

suspected of engaging in or for failing to prevent another from

engaging in protected conduct); EEOC v. Ohio Edison Co., 7 F.3d

541, 545-46 (6th Cir.1993) (broadly construing statutory language

that "he has opposed any practice" to mean the plaintiff or his

agent); Wu v. Thomas, 863 F.2d 1543, 1547 (11th Cir.1989)

(permitting husband's claim of retaliation against him for wife's

EEOC filing to "piggy back" on wife's charge of retaliation).

The majority ignores the reality that the threat of
26

retaliatory action against a family member or friend is a

substantial deterrent to the free exercise of rights protected

under the ADEA. The majority opinion thus permits the very conduct

that the anti-retaliation provision is designed to prevent.

Because I do not believe that this narrow reading of the provision

is justified, I dissent.