Most retaliation lawsuits are brought by plaintiffs who allege that their employer has taken adverse employment action against them after they engaged in a protected activity. However, a recent Michigan Court of Appeals case 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 Correctionsunpublished per curiam 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 who have helped or encouraged a co-worker in the exercise of a protected right.
plaintiffs in Miller they were employees of the defendants and 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 that internal affairs retaliated against Cedric after he complained about the harassment of his wife. The plaintiffs also believe that a “false investigation” into another matter was conducted to justify Cedric’s discipline. The employment of the plaintiffs, Cedric and Lisa, was later terminated.
The plaintiffs filed a lawsuit alleging, among other claims, retaliation under Michigan’s civil rights statute: the Elliott-Larsen Civil Rights Act (ELCRA). The plaintiffs also alleged that the defendant had a pattern of retaliation against employees. The defendant filed a dispositive motion arguing that because the plaintiffs did not allege that they engaged in any activity protected by civil rights, they had not filed a claim under the ELCRA. In response, the plaintiffs argued that they filed a claim for “associative” 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.
As a result of the defendant’s appeal, the Michigan Court of Appeals denied the plaintiffs’ reliance on thompson. But it is important to understand what exactly the thompson court held. There, the court considered whether a plaintiff who claimed he was fired in retaliation for his fiancée’s filing a discrimination lawsuit against his mutual employer could file a retaliation claim under Title VII.
The court concluded that it was “obvious that a reasonable female worker could be discouraged from engaging in a protected activity if she knew that her fiancé would be fired.” While the court declined 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 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 individuals from:
(f) duress[ing]intimidate[ing]threaten[ing]or interfere[ing] with a person in the exercise or enjoyment of, or for having helped or encouraged another person in the exercise or enjoyment of any right granted or protected by this law.
Simply put, this subsection prevents an employer from coercing, intimidating, threatening, or interfering with an employee’s employment when that employee assists or encourages another person, such as a fellow employee, to exercise a right under the Act. court found that thompson was unenforceable because (1) it interpreted Title VII, which does not have language similar to subsection (f), and (2) subsection (f) provides that only a third party who “aids or encourages” another employee cannot be coerced, intimidated, etc. by an employer.
The court conceded that the main anti-retaliation provision of the ELCRA and the anti-retaliation provision of Title VII mirror each other. But the court cautioned against blindly applying equivalent sections of each statute unless the controlling language is substantially similar. Here, that was not the case.
Furthermore, the court stated that it cannot expand the scope of protections available when the legislature has already ruled on an issue. In other words, Michigan law clearly says when a third-party retaliation claim is actionable, and the court cannot expand this limitation. Finally, the plaintiffs never claimed that they helped or encouraged Cedric to engage in any protected activity. Therefore, they did not file a claim.
Practical impact for employers
The decision of the Michigan Court of Appeals is important for several reasons. Third-party retaliation claims are actionable if a complainant alleges facts showing that he or she helped or encouraged another person to engage in a protected activity. This withholding alone could increase the number of retaliation lawsuits filed against employers, so it’s important for employers to ensure their managers and HR professionals are trained on third-party retaliation. An employer’s knowledge that a complainant received assistance in an alleged protected activity does not prohibit an employer from taking justified adverse action.
Beyond training on third-party retaliation issues, employers should review their retaliation policies to ensure that the definition of retaliation in their manuals is broad enough to encompass any retaliatory action taken against third parties who are not whistleblowers.