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July 2, 2024
Third party retaliation occurs when an employee complains of discrimination, retaliation, or harassment and the employer takes adverse employment action against a coworker with whom the complainant has a close relationship. The Michigan Supreme Court recently held that Michigan’s anti-discrimination statute, the Elliott-Larsen Civil Rights Act (“ELCRA”), does not distinguish between direct retaliation and third party retaliation and, therefore, third party retaliation claims are permissible under the ELCRA.
Factual Background
In Miller v. Department of Corrections, No. 164862, 2024 Mich. LEXIS 863 (May 10, 2024), Lisa Griffey alleged that she was forced to endure two years of racial abuse and harassment by her coworkers at the Michigan Department of Corrections (“MDOC”). After particularly offensive comments, Lisa filed a complaint with her supervisor. However, the harassment worsened. Lisa then transferred offices, but found her new workplace to be equally hostile because her prior supervisor warned her new coworkers about her harassment complaint. Lisa subsequently filed a civil action against the MDOC pursuant to the ELCRA.
Lisa’s husband, Cedric Griffey, also worked for the MDOC as a deputy warden. Following Lisa’s complaint of harassment and Cedric’s own complaints about how she was treated, Cedric became the target of internal MDOC investigations. As a result of the investigations and disciplinary actions taken against him, Cedric feared that he would lose his job and elected to retire. He later joined Lisa as a co-plaintiff in the civil action against the MDOC.
Richard Miller and Brent Whitman – the plaintiffs in this action – also were MDOC employees and were involved in at least one of the MDOC investigations that targeted Cedric. It was well known within the MDOC that Miller and Whitman are close friends of Cedric. The MDOC ultimately terminated Miller’s and Whitman’s employment. They subsequently filed this lawsuit against the MDOC pursuant to the ELCRA. They alleged that the MDOC fired them in retaliation for Cedric’s engagement in protected activity. The MDOC moved to dismiss their claims on the ground that they had not personally engaged in protected activity and thus could not assert a retaliation claim under the ELCRA.
The Michigan Supreme Court’s Decision
Reversing the Court of Appeals, the Michigan Supreme Court unanimously held that the ELCRA permits a cause of action for third party retaliation. The ELCRA states that “a person alleging a violation [of the ELCRA] can bring a civil action for appropriate injunctive relief or damages, or both.” To establish a claim for retaliation under the ELCRA, the plaintiff must prove (1) the defendant took adverse action against the plaintiff; and (2) a causal link between the adverse action and “a protected activity.” Protected activity typically consists of an employee complaining about unlawful conduct either within the company or to a third party, like a government organization.
The Michigan Supreme Court found that the express terms of the ELCRA do not require the plaintiff to be the person who engaged in the protected activity. Therefore, a plaintiff needs to establish only a violation of the statute and damages to assert a claim under the ELCRA. With respect to Miller and Whitman, the Michigan Supreme Court concluded that they sufficiently pleaded a retaliation claim under the ELCRA because they alleged that they were fired in retaliation for Cedric’s engagement in protected activity and suffered damages as a result. “The causal link between the firings and Cedric Griffey’s protected acts is explained by plaintiffs’ alleged close relationship with Cedric Griffey – the firings of the plaintiffs were ‘part of the effort to retaliate against Griffey.’”
In reaching this conclusion, the Michigan Supreme Court noted that the ELCRA was modeled after Title VII of the Civil Rights Act and the U.S. Supreme Court already held that third party retaliation claims are permissible under Title VII. See Thompson v. North American Stainless, LP, 562 U.S. 170 (2011). In reversing the Court of Appeals, the Michigan Supreme Court found that the Court of Appeals misapplied the rules of statutory interpretation in attempting to distinguish the ELCRA from Title VII.
Employer Takeaways
Decisions like this one expand the scope of potential employees who can file a retaliation suit against an employer. Employers should take care to document all performance issues and disciplinary proceedings so they can defend against retaliation claims like this one. Employers also should train supervisors and Human Resource employees to recognize potential retaliatory actions against employees, including those who are associated with an employee who complained about discrimination, retaliation, or harassment.
The author of this article, Maria V. Martin, is a member of the Bars of New Jersey, New York, Ohio, and Pennsylvania. This article is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice in New Jersey, New York, Ohio, Pennsylvania, Michigan, or any other jurisdiction, nor does it establish an attorney-client relationship with any reader of the article where one does not exist. Always consult an attorney with specific legal issues.
