The Troublemaker's Friend: Retaliation against Third Parties and the Right of Association in the Workplace

Abstract

Title VII theoretically provides virtually unlimited protection from retaliation for one kind of workplace troublemaker - the employee who files a formal charge of discrimination. However, the protection from retaliation enjoyed by such individuals is significantly less when the troublemaker resorts to an employer's internal process for resolving discrimination complaints prior to the filing of a formal charge of discrimination. And what of the coworker who assists the troublemaker in pursuing such an internal grievance? Or the coworker who simply has some type of relationship with the troublemaker who files a formal charge of discrimination? What protection from retaliation do such individuals enjoy under federal law? As it turns out, in many cases the answer is little to none.

In analyzing the issue of whether to permit retaliation claims based on an individual's association with or assistance to a coworker who has engaged in protected activity, the only policy value courts typically discuss is the goal of maintaining access to the statute's remedial mechanism. That maintaining access to such mechanisms is the primary purpose of anti-retaliation provisions is beyond question. However, this Article argues that there is another value that is implicated in these cases that routinely goes unmentioned; namely, the policy in favor of encouraging (or, at a bare minimum, not discouraging) employees from associating with one another. This Article argues that in addition to the goal of permitting unfettered access to remedial mechanisms, one of the goals of anti-retaliation provisions in employment discrimination statutes should be not just to permit but to actually encourage workers to meet and discuss management-employee relations and to provide aid to one another. In so doing, courts may help foster the sense of solidarity that may prevent the creation of hostile work environments from developing in the first place and that may allow for more effective resolutions of discrimination complaints that have already been filed.

Keywords: Retaliation, Title VII, Discrimination, Employment, ADEA, ADA, Crawford

JEL Classification: J20, J7, K31