We know what Congress said, it just didn’t say enough


“From time to time, we should remind ourselves that we are judges, not legislators. This is such a time.”

- 6th U.S. Circuit Court of Appeals Judge Richard Allen Griffin, dissenting, and chiding the majority, in Thompson v. North American Stainless.

Thompson and his fiancee worked for the same employer. She filed a gender-discrimination complaint with the Equal Employment Opportunity Commission against her supervisors. Thompson was fired several weeks after the EEOC told North American about the complaint. He sued under a Title VII retaliation theory and appealed to the 6th Circuit after the federal district court dismissed his complaint.

The majority, in an opinion authored by U.S. Eastern District Judge Arthur Tarnow, who was sitting on the panel by designation, conceded 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.”

But the majority was apparently looking at a bigger picture when it framed the issue and provided the conclusion:

“[D]oes 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.”

Judge Griffin noted that no federal court of appeals has approved extending Title VII in this way, and that several circuits have “soundly rejected such a cause of action.” And, he said, that the real issue is whether Thompson is a member of the class of persons that Title VII actually protects. He is clearly not, in Judge Griffin’s view:

“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.”

Plain Meaning v. Intent, or if you prefer, Intent v. Plain Meaning, is alive and well.

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