Two recent federal court decisions make it possible for employees to bring Title VII discrimination or retaliation claims based on their associations with members of potentially or traditionally protected classes.  In recognizing “associational discrimination” as an actionable claim, the US Courts of Appeals for the Second and Sixth Circuits joined a number of other federal courts in the trend toward a more expansive definition of who is protected under Title VII.

The Cases

In the first case, Holcomb v. Iona College, decided by the Second Circuit on April 1, 2008, Holcomb alleged that he was fired from his position as an assistant basketball coach at Iona College because his wife is black.  The College denied that allegation and maintained that its decision to terminate Holcomb was instead performance-based.  Addressing the issue for the first time, the court held “that an employer may violate Title VII if it takes action against an employee because of the employee’s association with a person of another race.”

Just a day before the Holcomb decision was issued, the Sixth Circuit issued its own decision recognizing associational discrimination.  In Thompson v. North Am. Stainless, LP, the court held that Title VII’s anti-retaliation provision extends to employees who are associated with other employees who have claimed discrimination under the statute.  The case arose when Thompson was fired, allegedly as the result of a gender discrimination charge made by his fiancé against the couple’s mutual employer.  

Both courts acknowledged that associational discrimination and retaliation are not expressly prohibited by Title VII but refused to limit their interpretation to the plain text, rejecting a restrictive reading.  Instead each focused on the statute’s purpose of achieving equality in the workplace and found allowing such discrimination and retaliation would defeat that purpose of the law.  In Holcomb, the Second Circuit noted, “where an employee is subjected to adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee’s own race.” 

Who is an associated person?

Based on Holcomb, Thompson and the trend toward broad coverage under Title VII, employers should be aware of who can file a charge as a protected person under the statute.  An employee whose own status would not otherwise be protected may, because of a close association with a protected person, gain Title VII protection for any adverse action taken by an employer as a result of that association.  Past appeals court decisions have found close associations to include spouses, fiancés and significant others.  While no court has held a loose friendship or acquaintance with a protected person to be sufficient, such associations may form the basis for allowable Title VII claims in the future. 

So, for example, if an employer is aware that an employee is dating someone who is Jewish and subjects the employee to discriminatory conduct as a result, the employee may file a Title VII discrimination claim even though the discrimination was not the result of the employee’s own religion.  The same holds true for discrimination based on the race, gender or any other protected characteristic of an employee’s family member, significant other or, possibly, friend.  

The bottom line is that employers should be aware that employees can obtain protection under Title VII based on their associations with members of a protected class.  This is specifically true if the employees can assert that they were subject to discriminatory conduct due to said association.  Such employees are then allowed to bring Title VII discrimination and retaliation claims and so should be treated by the employer as having the protected status.  

If you are interested in learning more about “associational discrimination” as an actionable claim, please contact any Darrell S. Gay or any member of Arent Fox's Labor and Employment Practice in New York, Los Angeles or Washington, DC.

Darrell S. Gay
darrell.gay@arentfox.com
212.457.5465