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A Close Friendship Is Not Enough to Maintain a “Third-Party” Retaliation Claim
Wednesday, January 18, 2023

Most retaliation claims are brought by plaintiffs who allege their employer has taken adverse employment actions against them after they have engaged in a protected activity. A recent Michigan Court of Appeals case, however, involves plaintiffs who claim their employment was terminated because they are close friends with the person engaging in the protected activity. In Miller v. Michigan Department of Corrections, unpublished per curiam of the Michigan Court of Appeals, issued August 25, 2022 (Docket No. 356430), the court held that while third-party retaliation claims are viable under Michigan law, plaintiffs must show they have aided or encouraged a fellow employee in exercising a protected right.

Factual Background

The plaintiffs in Miller were the defendants’ employees, and they had a close relationship with their supervisor, Cedric Griffey. Employee Lisa Griffey, Cedric’s wife, filed a civil rights complaint alleging that she was racially harassed in the workplace. The plaintiffs allege internal affairs retaliated against Cedric after he complained about the harassment of his wife. The plaintiffs also believe a “sham investigation” was conducted on another matter to justify disciplining Cedric. The employment of the plaintiffs, Cedric and Lisa, was later terminated.

Procedural History

The plaintiffs filed a complaint alleging, among other claims, retaliation under Michigan’s civil rights statute – the Elliott-Larsen Civil Rights Act (ELCRA). The plaintiffs also alleged the defendant had a pattern of retaliating against employees. The defendant filed a dispositive motion arguing that because plaintiffs did not allege that they engaged in any protected civil rights activity, they had failed to state a claim under the ELCRA. In response, the plaintiffs argued that they pled a claim for “associational” or “third-party” retaliation under Thompson v. North American Stainless, LP, 562 US 170, 173-174 (2011). The trial court relied on Thompson and denied the defendant’s motion.

Analysis

As a result of the defendant’s appeal, the Michigan Court of Appeals rejected the plaintiffs’ reliance on Thompson. But it’s important to understand what exactly the Thompson court held. There, the court considered whether a plaintiff who alleged that he was fired in retaliation for his fiancée’s filing of a discrimination complaint against their mutual employer could bring a retaliation claim under Title VII.

The court concluded it was “obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.” While the court refused to adopt a categorical rule for determining which plaintiffs have standing to bring a third-party retaliation claim, the court nonetheless concluded that firing a close family member such as the plaintiff “will almost always” be actionable.

In reaching its decision, the Michigan Court of Appeals relied on MCL 37.2701(f), which prohibits people from:

(f) Coerc[ing], intimidate[ing], threaten[ing], or interfer[ing] with a person in the exercise or enjoyment of, or on account of his or her having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this act.

Stated simply, this subsection precludes an employer from coercing, intimidating, threatening or interfering with an employee’s employment when that employee aids or encourages another person – such as a fellow employee – to exercise a right under the Act. The court found that Thompson was inapplicable because (1) it interpreted Title VII, which does not have similar language to subsection (f), and (2) subsection (f) states that only a third party who “aids or encourages” another employee cannot then be coerced, intimidated, etc. by an employer.

The court conceded that the principal anti-retaliation provision of the ELCRA and Title VII’s anti-retaliation provision mirror each other. But the court cautioned against blindly applying counterpart sections of each act unless the controlling language is substantially similar. Here, that wasn’t the case.

Moreover, the court stated that it cannot enlarge the scope of protections available when the legislature has already spoken on an issue. In other words, Michigan law plainly says when a third-party retaliation claim is actionable, and the court cannot broaden this limitation. Lastly, plaintiffs never alleged they aided or encouraged Cedric to engage in a protected activity. Therefore, they failed to state a claim.

Practical Impact for Employers

The Michigan Court of Appeals decision is significant for a few reasons. Third-party retaliation claims are actionable if a plaintiff pleads facts that show the plaintiff aided or encouraged another person to engage in a protected activity. This holding alone could increase the number of retaliation claims brought against employers, so it’s important for employers to make sure that their managers and human resources professionals are trained on third-party retaliation. An employer’s awareness that a complainant was aided in an alleged protected activity does not prohibit an employer from taking justified adverse actions.

Beyond training on third-party retaliation issues, employers should revise their retaliation policies to ensure the definition of retaliation in their handbooks is broad enough to encompass any retaliatory actions taken against third parties who are not complainants.

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