Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
The U.S. Court of Appeals for the Eleventh Circuit recently issued an opinion concerning the Title VII retaliation protections afforded to third parties. Tolar v. Bradley Arant Boult Cummings, LLP, No. 19-11546 (11th Cir. May 17, 2021). Although the Eleventh Circuit affirmed the district court’s order granting summary judgment for the defendant employer, based on the McDonnell Douglas burden-shifting framework, Tolar offers some insight into how the Eleventh Circuit might handle other aspects of third-party Title VII retaliation cases.
An employee worked for the defendant bank for seven months before her employment was terminated. She claimed she was fired for complaining of sexual harassment by her direct supervisor, the bank’s president. Following the employee’s job termination, her father advised the bank’s board chairman that an EEOC charge would be forthcoming and requested his daughter’s reinstatement.
Significant to the case, the employee’s father also had his own relationship with the bank: (1) he served as outside legal counsel handling foreclosure proceedings on a contractual basis; and (2) he borrowed money from the bank. After the father spoke with the bank’s board chairman, the bank did not include him on its panel of attorneys authorized to perform further legal work for the bank due to its conclusion that his interests had become adversarial to the bank’s by virtue of his involvement in his daughter’s sexual harassment charge.
The father then defaulted on his loan from the bank, following which the bank initiated proceedings to collect on the debt. After the bank was unable to collect, the bank became aware that the father was the beneficiary of an irrevocable spendthrift trust and concluded that there was reason to believe that he had manipulated that trust to preclude the bank from reaching any benefit to which he might be entitled. The bank thus decided to pursue legal action, which implicated the former employee’s brother and uncle who were beneficiaries of the trust.
The father, brother and uncle (the Plaintiffs) filed a third-party Title VII retaliation case against the bank and the law firm representing the bank in the debt collection action. They alleged that the defendants’ actions were in retaliation for their relative’s sexual harassment complaint. More specifically, the Plaintiffs identified two retaliatory events: (1) alleged “scorched earth” litigation to collect on the debt; and (2) the bank’s decision not to provide further legal work to the former employee’s father.
The district court dismissed the claim against the law firm because the firm did not employ any of the Plaintiffs. Following discovery, the trial court also granted the bank summary judgment, concluding that Plaintiffs were “persons aggrieved” under Title VII but they were unable to establish a causal link between the former employee’s protected activity—the sexual harassment complaint—and any adverse action by the bank against Plaintiffs. Plaintiffs appealed.
The Eleventh Circuit’s Decision
Delivering the opinion of a unanimous Court, Judge Carnes of the Eleventh Circuit identified the following main issues on appeal:
- Whether the bank’s actions constitute actionable retaliation because those actions “well might have dissuaded a reasonable worker” from engaging in activity protected by Title VII;
- Whether Plaintiffs qualify as “persons aggrieved” under Title VII because they fall within the zone of interests protected by the statute; and
- Whether Plaintiffs’ claims survive the McDonnell Douglas burden-shifting test.
Since the court decided that Plaintiffs’ claims could not survive the McDonnell Douglas burden-shifting test,1 the court did not decide the other issues. Still, the court provided meaningful insight into how it might have ruled in the absence of McDonnell Douglas, in that it:
- Noted that determining whether litigation may be considered retaliation within the scope of Title VII might require absence of probable cause for the action.
- Emphasized that, in announcing the standard for third-party retaliation claims, the Supreme Court in Thompson v. North American Stainless, LP highlighted that the aggrieved third party was also an employee of the defendant company and within the “zone of interest” protected by Title VII. In this case, none of the Plaintiffs had an employment relationship with the bank.
- Affirmed the trial court’s conclusion that the defendant law firm could not be liable under Title VII where the law firm did not employ either the former employee (the party who engaged in protected activity) or the Plaintiffs (the persons affiliated with the complainant).
The Eleventh Circuit also questioned the district court’s finding that Plaintiffs are aggrieved persons. In doing so, the Eleventh Circuit emphasized that a reasonable employee would assume that a relative who owes the employee’s employer money would be expected to honor the terms of repayment and “it is not immediately apparent how disallowing a lawsuit by an employer against a complaining employee’s relative to recover moneys that are undisputedly owed, fits within the ‘zone of interests’ served by Title VII.” That is, a legitimate lawsuit against a non-employee relative for money that is legitimately owed might not dissuade an employee from engaging in protected activity and might not serve the interests Title VII is meant serve. The court distinguished the litigation from the refusal to provide further work to the employee’s father, noting (without deciding) that the refusal to provide work to a relative was more likely to dissuade an employee from engaging in protected activity than the pursuit of legitimate litigation for a legitimate debt.
The Tolar Decision’s Impact on Employers
Although Tolar was decided on traditional McDonnell Douglas grounds, by hinting that the “zone of interest” test established in Thompson might not be broad enough to include non-employee claimants, the opinion suggests that employers faced with retaliation claims by non-employees could have strong defenses to liability.
Nevertheless, because the Eleventh Circuit2 did not definitively rule on that issue, employers should:
- Consider third parties with whom an employee complaining of discrimination may have a relationship and evaluate potential retaliation implications before changing the terms of the employer’s relationship with those third parties; and
- Make sure that non-retaliation policies can be construed broadly enough to prevent retaliation against third parties.
1 McDonnell Douglas is an evidentiary framework used to analyze whether a plaintiff’s employment claim can survive a defendant’s motion for summary judgment. Over time, the framework has been utilized, with some variations, in different types of claims. In retaliation cases, McDonnell Douglas requires that the plaintiff prove, among other things, that but for the exercise of the protected activity the employer would not have taken the particular action that forms the basis of the lawsuit. In Tolar, the Plaintiffs’ claims failed because they could not establish that but for the employee’s complaint of sexual harassment, the employer would not have pursued the same course of action. Accordingly, summary judgment was granted.
2 The 11th Circuit covers Alabama, Florida, and Georgia.