Thompson alleged that he was terminated in retaliation for his then-fiancée’s EEOC charge, while North American Stainless contended that performance-based reasons supported the plaintiff’s termination.

Thompson sued the employer for violation of Title VII alleging retaliatory discharge based on the protected activity of Thompson's fiancée, a co-worker. The trial court granted the employer's motion for summary judgment. The 6th Circuit affirmed. The court described the sole issue as whether section 704(a) of Title VII created a cause of action for third-party retaliation for persons who did not engage in protect activity. 

Because Thompson did not allege he himself engaged in any statutorily protected activity (i.e., did not oppose an unlawful employment practice, make a charge, testify, assist, or participate in an investigation), the court found by the plain language of the statute that Thompson was not included in the class of persons for whom Congress created a retaliation cause of action. The 3rd, 5th, and 8th circuits agreed. The court distinguished the recent Supreme Court's decision in Crawford v. Metro Gov't of Nashville and Davidson County, Tenn., 129 SCt 846 (2009), (which abrogated the 6th Circuit's view that the opposition clause required active, consistent behavior), by stating that Crawford involved involuntary testimony while Thompson did not engage in any protected activity. 

The three DISSENTS by six judges argued that (1) Crawford, at a minimum, found the meaning of "oppose" ambiguous; (2) the primacy of statutory purpose and a broad approach should apply in interpreting statutes meant to protect employees against employer retaliation for protected activity; and (3) Thompson was a person claiming to be aggrieved (injured or wronged in his rights) under 42 USC Section 2000e-5(b).

On December 14, 2009 the US Supreme Court requested that the Solicitor General file a brief expressing the views of the United States. 

Case below: Thompson v. North American Stainless, LP (6th Cir en banc 06/05/2009)
Official docket sheet 
Certiorari is pending. The Court has requested that the Solicitor General file a brief expressing the views of the United States.

Questions presented:   

Section 704(a) of Title VII forbids an employer from retaliating against an employee because he or she engaged in certain protected activity. The questions presented are: 

(1) Does section 704(a) forbid an employer from retaliating for such activity by inflicting reprisals on a third party, such as a spouse, family member or fiancé, closely associated with the employee who engaged in such protected activity? 

(2) If so, may that prohibition be enforced in a civil action brought by the third party victim?

Certiorari Documents: 

• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

• For Petitioner: Eric Schnapper; University of Washington School of Law; P.O. Box 353020; Seattle, WA  98195; schnapp@u.washington.edu; (206) 616-3167.
• For Respondent: Leigh Gross Latherow; Vanantwerp, Monge, Jones, Edwards & McCann, LLP; 1544 Winchester Avenue, Fifth Floor; P.O. Box 1111; Ashland, KY  41105-1111; (606)-329-2929.