Fogleman v. Mercy Hosp. 00-2263 IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 00-2263 FOGLEMAN vs. MERCY HOSP. Gregory Fogleman, Appellant On Appeal from the United States District Court for the Middle District of Pennsylvania BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF THE APPELLANT GWENDOLYN YOUNG REAMS Associate General Counsel PHILIP B. SKLOVER Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ROBERT J. GREGORY Senior Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4059 STATEMENT OF INTEREST The Equal Employment Opportunity Commission ("Commission") is the agency entrusted with the enforcement of Title I of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"); the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. ("ADEA"); Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"); and the Equal Pay Act of 1963, 29 U.S.C. § 206(d) ("EPA"). Each of these statutes contains a provision that outlaws retaliation. 42 U.S.C. § 12203(a) (ADA); 29 U.S.C. § 623(d) (ADEA); 42 U.S.C. § 2000e-3(a) (Title VII); 29 U.S.C. § 215(a)(3) (EPA).<1> As this Court has recognized, anti-retaliation protection exists in federal law because of "the need to prevent employees' 'fear of economic retaliation' for voicing grievances about [working] conditions." Brock v. Richardson, 812 F.2d 121, 124 (3d Cir. 1987). In this case, the plaintiff, Gregory Fogleman, alleges that he was terminated from his job with the defendant, Mercy Hospital, "in retaliation for a claim by Fogleman's father under the . . . ADA, and ADEA."<2> Memorandum (March 29, 2000) at 1. In granting summary judgment in the defendant's favor, the district court agreed with the defendant that "Fogleman lacks standing to pursue his retaliation claims because he did not engage in a protected activity under any of the asserted statutory provisions. Rather, he brings the claims as the son of another Mercy employee who asserted rights under the relevant acts." Id. at 4. In reaching this conclusion, the district court disregarded the Commission's well-established position on this issue, see, e.g., 2 EEOC COMPLIANCE MANUAL (BNA) 614:0001 (attached as an addendum to this brief), as well as this Court's directive that courts interpret anti-retaliation provisions by reference to their "animating spirit," applying them, where necessary to further that spirit, to activities not "explicitly covered by the language." Brock, 812 F.2d at 124 (applying the FLSA's anti-retaliation provision to retaliation against an individual who had not actually engaged in protected activity). The decision of the district court, if allowed to stand, would deal a severe blow to the enforcement of the anti-discrimination statutes, permitting employers to retaliate with impunity against employees related (by blood or association) to the individual engaging in the protected activity. Because of the importance of this issue to the enforcement of the anti-discrimination statutes, the Commission, pursuant to F.R.A.P. 29(a), offers its views to the court as amicus curiae. STATEMENT OF THE ISSUE Whether the anti-retaliation provisions of the ADA and the ADEA cover cases of third-party retaliation, i.e., cases in which an employer discriminates against one employee because of the protected activity of another employee. STATEMENT OF THE CASE The claims in this case center on Mercy's decision to terminate Fogleman's employment as Supervisor of Security. The facts are largely irrelevant to the legal issue addressed in this brief. Suffice it to say that Fogleman was terminated from his position in September 1996. Fogleman's father, Sterril, had also been an employee at Mercy. In 1994, Sterril filed a charge with the Commission, alleging violations of the ADA and the ADEA. This charge led to a civil action in federal court, brought in June 1995. That action, which was eventually settled in July 1998, was pending in court at the time Mercy terminated (Gregory) Fogleman's employment. Fogleman alleges that he was terminated from his position because of Sterril's claims against Mercy. In granting summary judgment, the district court did not address the merits of Fogleman's retaliation claim. Instead, the court ruled that Fogleman lacked "standing" to bring that claim because he had not himself engaged in the protected activity that allegedly led to his termination. Memorandum (March 29, 2000) at 4. In the district court's view, this result was dictated by the plain language of the anti-retaliation provisions at issue, which makes it unlawful for an employer to discriminate against an individual because "such individual" has engaged in protected activity. Id. at 6-7 (citing 42 U.S.C. § 12203 [ADA]; 29 U.S.C. § 623(d) [ADEA]). The court concluded that, by virtue of this language, the protections of the anti-retaliation provisions extend only to a person "who actually engages in protected activity." Memorandum (March 29, 2000) at 17. The court perceived "no ambiguity in the language employed" and "no tension" between the court's restrictive reading of the anti-retaliation provisions "and the remainder of the [statute]." Id. ARGUMENT THE ANTI-RETALIATION PROVISIONS OF THE ADA AND THE ADEA COVER CLAIMS OF THIRD-PARTY RETALIATION. This case involves a pure issue of statutory interpretation. As the Supreme Court has explained, the "first step in interpreting a statute is to determine whether the language at issue has a plain and ambiguous meaning with regard to the particular dispute in the case." Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). The Court has made clear that the inquiry "must cease if the statutory language is unambiguous and 'the statutory scheme is coherent and consistent.'" Id. The "plainness or ambiguity of statutory language" is not determined in isolation; it is determined "by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole." Id. at 341. In this case, the district court ruled that the "plain language" of the anti-retaliation provisions precludes coverage of third-party retaliation claims. No doubt, the language invoked by the court might be read to limit coverage to cases in which the retaliation is directed at an individual who has himself (or herself) engaged in the protected activity. The question, however, is not whether this is a permissible reading of the statute, nor even whether this is the more "natural" reading of the statute. See McCarthy v. Bronson, 500 U.S. 136, 139 (1991) (because "statutory language must always be read in its proper context," the "most natural reading" of the statutory language, "when viewed in isolation," does not always control). The question is whether the text is so crystal clear that it forecloses consideration of the broader indicia of congressional intent, such as the manifest purpose of the anti-retaliation provisions. If the language, read in context, is unambiguous, that language typically controls. Cf. Johnson v. United States, 120 S. Ct. 1795, 1813 (2000) (Scalia, J., dissenting) (acknowledging that there may be a "scrivener's error exception" to the plain language rule); Robinson, 519 U.S. at 340 (plain language controls but only where it leaves the statutory scheme "'coherent and consistent'"); Demarest v. Manspeaker, 498 U.S. 184, 190 (1991) (plain language rule does not control where it leads to a result "'demonstrably at odds with the intentions of [the statute's] drafters'"). If, however, an ambiguity emerges from "the language itself, the specific context in which that language is used, and the broader context of the statute as a whole," Robinson, 519 U.S. at 341, the court is free to consult the broader indicia of intent, which, in this context, strongly support coverage of third-party retaliation claims. For the reasons discussed below, we believe that the anti-retaliation provisions of the ADA and the ADEA do not unambiguously foreclose coverage of third-party retaliation claims. The ambiguous text aside, we further believe that a finding of coverage is mandated by the manifest purpose of the anti-retaliation provisions -- "[m]aintaining unfettered access to statutory remedial mechanisms." Robinson, 519 U.S. at 346; see also Brock, 812 F.2d at 124 (broad reading of anti-retaliation provision required to ensure that "a workplace environment conducive to employee reporting" is maintained).<3> The Text Of The Anti-Retaliation Provisions Does Not Unambiguously Foreclose Coverage Of Third-Party Retaliation Claims For a number of reasons, the anti-retaliation provisions at issue are ambiguous on the issue of third-party retaliation claims. First, the term "such individual" does not have the clear meaning ascribed to it by the district court. The district court ruled that, by making it unlawful for an employer to discriminate against an individual because "such individual" has engaged in some form of protected activity, the statute unambiguously limits the reach of anti-retaliation protection to cases of "first-party" retaliation. The court overlooked the point, however, that Congress may not have used the term in an exclusive sense. It is generally understood, under the maxim of "expressio unius est exclusio alterius," that where "the persons and things to which [a statute] refers are designated, there is an inference that all omissions should be understood as exclusions." 2A N. SINGER, SUTHERLAND STATUTORY CONSTRUCTION § 47.23, at 216 (5th ed. 1992). That maxim, however, simply supports an "inference" of exclusivity. Id. Courts have emphasized that, because "[n]ot every silence is pregnant," expressio unius is "an uncertain guide to interpreting statutes." E.g., State of Illinois Dep't of Public Aid v. Schweiker, 707 F.2d 273, 277 (7th Cir. 1983) (Posner, J.). Courts have cautioned that the expressio unius maxim is "'often a valuable servant, but a dangerous master to follow in the construction of statutes or documents.'" E.g., Ford v. United States, 273 U.S. 593, 612 (1927). "In some cases, Congress intends silence to rule out a particular statutory application, while in others Congress' silence signifies merely an expectation that nothing more need to be said in order to effectuate the relevant legislative objective." Burns v. United States, 501 U.S. 129, 136 (1991). That the anti-retaliation provisions do not specifically refer to third-party retaliation does not, by necessity, rule out the possibility that Congress intended to cover such retaliation. Further, in this case, the exclusive reading of the statute rests entirely on the single term "such individual." It is by no means clear that this single term is so restrictive as to preclude all cases of third-party retaliation. For example, if an employer retaliates against a husband because his wife has filed a charge of discrimination, one could plausibly say, due to the closeness of the relationship, that retaliation against one spouse is retaliation against the other. Indeed, in several respects, the law treats a husband and wife as a single legal entity, extending to one spouse the protections accorded to the other and deeming each spouse to be the agent of the other. See, e.g., Morrison v. Potter, 764 A.2d 234, 236, 238 (D.C. 2000) (describing a "tenancy by the entireties" as "'essentially a joint tenancy, modified by the common-law theory that husband and wife are one person'"; noting that "with respect to a joint bank account held by a husband and wife, each spouse acts as the other spouse's agent"). Does the term "such individual" really mean that the spouses are to be treated as complete strangers such that retaliation against one spouse for the protected activity of another is not actionable?<4> In a similar vein, where an employer retaliates against Employee A because Employee B has acted on Employee A's behalf in opposing discrimination in the workplace, Employee A has not himself engaged in protected activity. Yet, another employee, acting as Employee A's representative, has. The law often accords joint legal status to principals and their agents, imputing the conduct of one to the other and treating their legal interests as interchangeable. See, e.g., RESTATEMENT (SECOND) OF AGENCY § 12 (an agent "holds a power to alter the legal relations between the principal and third persons"); § 217 B ("[p]rincipal and agent can be joined in an action for a wrong resulting from the tortious conduct of an agent"); § 292 ("other party to a contract made by an agent . . . is liable to the principal as if he had contracted directly with the principal") (1957). Does the use of the term "such individual" really mean that parties to such a representative relationship are to be treated as complete strangers such that discrimination against the "principal" for the protected activity of the "agent" is not actionable? The above questions would appear to answer themselves. The term "such individual" does not compel a finding that Congress intended, by use of that single term, to exclude cases of third-party retaliation from the reach of the anti-retaliation provisions. The term, in any event, is ambiguous, given the fact that, in many cases, the legal interests of related parties are interchangeable, such that the actions of one "such individual" are deemed to be the actions of the other. Even assuming that these points do not establish an ambiguity in the "language itself," the court, in determining the "plainness or ambiguity of statutory language," must still look to "the specific context in which that language is used, and the broader context of the statute as a whole." Robinson, 519 U.S. at 341. In this case, the specific context is revealing. Both anti-retaliation provisions are written in sweeping terms. The first clause of the ADEA's anti-retaliation provision broadly extends the protection of the statute to "any of [the employer's] employees or applicants for employment." 29 U.S.C. § 623(d) (emphasis added). The last clause refers to participation "in any manner" in the enforcement process. The ADA contains similar language, making it unlawful to discriminate against "any individual" who has participated "in any manner" in the enforcement process. 42 U.S.C. § 12203(a). At the very least, this language suggests that Congress enacted the anti-retaliation provisions with a broad view of statutory coverage. Courts have cautioned against the "dangers in attempting to rely too heavily" on the individual "connecting words" of a statute. E.g., Kelly v. Wauconda Park Dist., 801 F.2d 269, 270-71 & n.1 (7th Cir. 1986). Instead, a court must "look at all parts of the statute." Id. A court should not rely upon a "single ambiguous word in order to give [the statute] a meaning contradictory to the fair import of the whole remaining language." United States v. Brown, 333 U.S. 18, 25-26 (1948). Here, the "remaining language" of the anti-retaliation provisions supports a broad view of coverage, a view that would be severely compromised if the term "such individual" were given a restrictive reading. The Supreme Court addressed a similar issue in NLRB v. Scrivener, 405 U.S. 117 (1972). The issue in Scrivener was whether the retaliation prohibition of the National Labor Relations Act ("NLRA") applied to an employee who had given a sworn statement to the Board. By its terms, the statute limited coverage to employees who had "'filed charges or given testimony.'" Id. at 122. The Court conceded that the language of the statute "could be read strictly and confined in its reach to formal charges and formal testimony" but noted that it could "also be read more broadly." Id. Specifically, the Court cited the "presence of the preceding words 'to discharge or otherwise discriminate.'" Id. The Court concluded that, "[o]n textual analysis alone," the presence of such words revealed, "particularly by the word 'otherwise,' an intent on the part of Congress to afford broad rather than narrow protection to the employee." Id. (emphasis added). The Supreme Court's point in Scrivener is simple -- the words of a statute are known by the company that they keep. The use of broad coverage language in a statutory provision suggests that other phrases of the provision should not be given a restrictive reading if doing so would narrow the scope of statutory protection. At the very least, such language renders the statute ambiguous. Here, the coverage language of the anti-retaliation provisions is broad, extending to "any" of the employer's employees or applicants, in the case of the ADEA, or "any" individual, in the case of the ADA. "On textual analysis alone," this raises the possibility that Congress did not intend, by use of the term "such individual," to exclude third-party retaliation from the reach of the statute. Finally, the "broader context" of the statutes at issue reveals a structural ambiguity with respect to cases of third-party retaliation. The district court's restrictive reading of the anti-retaliation provision reflects an "every man for himself" perspective, in which the scope of statutory protection for unlawful retaliation is coterminous with an individual's own protected activity. The anti-discrimination statutes, however, reject such a "first-person" view of the enforcement process. The ADEA, for example, authorizes the filing of charges on behalf of third parties. See 29 C.F.R. § 1626.3 (defining a charge under the ADEA as a "statement filed with the Commission by or on behalf of an aggrieved person"). So too does the ADA. See 42 U.S.C. § 12117 (incorporating Section 706 of Title VII, 42 U.S.C. § 2000e-5, which specifically authorizes the filing of charges "on behalf of a person claiming to be aggrieved").<5> Both statutes protect opposition activity in the workplace, see 29 U.S.C. § 623(d); 42 U.S.C. § 12203(a), activity that, by its very nature, is likely to inure to the benefit of other employees in the workplace. Under the anti-discrimination statutes, moreover, an individual who has not filed a timely charge may rely on the timely charge of another employee in pursuing a claim that arises out of "'similar discriminatory treatment in the same time frame.'" Tolliver v. Xerox Corp., 918 F.2d 1052, 1056-57 (2d Cir. 1990); see also Wu v. Thomas, 863 F.2d 1543, 1546-48 (11th Cir. 1989) (wife's charge of retaliation on behalf of husband sufficient to support husband's claim; no need for husband to file his own charge). Reflecting a holistic approach to enforcement, the anti-discrimination statutes encourage individuals to file charges on behalf of their fellow workers and extend statutory protections to individuals who have not themselves participated in the enforcement process. See generally McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352, 358-59 (1995) (noting that the "private litigant who seeks redress for his or her injuries" also benefits other employees by rooting out discrimination that may stem from "patterns of noncompliance" or "entrenched resistance to [the law's] commands"). These features of the anti-discrimination statutes are critical. The anti-retaliation provisions do not stand alone. They are part of a statutory framework that seeks to root out discrimination through a process of informal complaint, administrative dispute resolution, and litigation. Why would Congress outlaw retaliation, permit employees to benefit from the protected activity of others, and then leave the employer free to retaliate with impunity against those employee-beneficiaries? At the very least, there is an uncomfortable fit between the restrictive reading of the anti-retaliation provisions and the enforcement provisions of the anti-discrimination statutes. This supports an argument that the statutes at issue are ambiguous on the precise issue of whether the anti-retaliations provisions protect against third-party retaliation. In this regard, the interpretive issue in this case closely parallels the issue before the Supreme Court in Robinson v. Shell Oil Co., 519 U.S. 337. In Robinson, the Supreme Court held that the protections of Title VII's anti-retaliation provision extend to former employees. In ruling that the text did not unambiguously foreclose coverage of former employees, the Court relied principally on the fact that a restrictive reading of the anti-retaliation provision, limiting protection to current employees, was in tension with other provisions of Title VII, which contemplate coverage of former employees. Id. at 342-44. The Court concluded that this tension made the statute "necessarily ambiguous." Id. at 343. The same is true in this case. The anti-discrimination statutes contemplate that the protections of the statute will run to employees who have not themselves engaged in protected activity. Yet, under a restrictive reading of the anti-retaliation provisions, those individuals will be vulnerable to acts of retaliation stemming from the protected activity of other employees. As in Robinson, the "broader context" of the statute exposes an ambiguity in the fabric of the statute's enforcement provisions. The interpretive issue in this case is also closely analogous to the issue in Ford v. Schering-Plough Corp., 145 F.3d 601 (3d Cir. 1998), cert. denied, 525 U.S. 1093 (1999). In that case, this Court held that the ADA covers individuals who are no longer performing work for the employer. This Court stressed that a more restrictive reading of the statute's coverage provisions would be inconsistent with other provisions in the statute, specifically, those provisions that protect against discrimination in a wide range of employee benefits, including benefits that, by their very nature, become available only upon an individual's retirement or separation from employment. This Court reasoned that the "disjunction between the explicit rights created by Title I of the ADA and the ostensible eligibility standards for filing suit under Title I" rendered the statute "ambiguous" on the coverage issue. Id. at 606 (noting that a court must look to the statute "'as a whole'" in assessing ambiguity). A similar "disjunction" is produced in this case if employees, otherwise entitled to claim the protections of the statute, are vulnerable to acts of retaliation prompted by the protected activities of other employees. In ruling that third-party retaliation falls outside the protections of the anti-retaliation provisions, the district court concluded that there was no "tension" between a narrow construction of the anti-retaliation provisions and "the remainder of the [statute]." Memorandum (March 29, 2000) at 17. In fact, the "tension" produced by the district court's interpretation is palpable. The anti-discrimination statutes encourage the filing of third-party charges and permit employees to benefit from the protected activity of other employees. Yet, under the district court's interpretation, the very same employees who are entitled to benefit from third-party protected activity are subject to retaliation for that protected activity. The district court's interpretation leaves a statute at war with itself. To be sure, in this case, the person engaging in the protected activity, Fogleman's father, was not engaging in protected activity on Fogleman's behalf.<6> The district court's interpretation, however, turns entirely on a rigid, plain language argument, one that would foreclose coverage of any third-party retaliation claim. Either that argument succeeds on its own terms, because the statutes are indeed unambiguous, or it fails, due to ambiguity, in which case this Court is free to look to the broader indicia of intent. The "disjunction" produced by a restrictive reading of the anti-retaliation provisions, together with the other ambiguities cited above, support a finding that the statutes at issue are ambiguous on the precise question of whether cases of third-party retaliation are excluded from coverage. B. The Anti-retaliation Provisions Should Be Construed To Cover The Claim Of An Employee Who Suffers An Adverse Action Because Of The Protected Activity Of Another Employee For the foregoing reasons, the meaning of the anti-retaliations provisions is ambiguous, when determined "by reference to the language itself, the specific context in which that language is used, and the broader context of the statute[s] as a whole." Robinson, 519 U.S. at 341. Under these circumstances, this Court is "left to resolve that ambiguity." Id. at 345. In so doing, this Court is free to look beyond the naked text in arriving at a meaning that fully effectuates the intent of the anti-retaliation provisions. Cf. Public Citizen v. U.S. Department of Justice, 491 U.S. 440, 455 (1989) ("Looking beyond the naked text for guidance is perfectly proper when the result it apparently decrees is difficult to fathom or where it seems inconsistent with Congress' intention."). Freed from the restraints of a rigid literalism, the argument for coverage is compelling. First, coverage has a reasonable foundation in the prohibitions of the anti-retaliation provisions. The case against coverage is based on the statutory maxim of "expressio unius est exclusio alterius" -- because the anti-retaliation provisions explicitly reference a case of one-on-one retaliation, but make no mention of third-party retaliation, the statutes are properly read as excluding cases of third-party retaliation. As discussed above, the "expressio unius" maxim is not controlling. It applies, if at all, only "when in the natural association of ideas in the mind of the reader that which is expressed is so set over by way of strong contrast to that which is omitted that the contrast enforces the affirmative inference that that which is omitted must be intended to have opposite and contrary treatment." Ford, 273 U.S. at 611. In this case, third-party retaliation is not in "strong contrast" to what is clearly proscribed in the statute. Id. To the contrary, the one flows inexorably from the other. Congress has clearly prohibited employers from retaliating against individuals who engage in protected activity. It is hardly a leap to say that the anti-retaliation provisions also apply when the employer targets for retaliation some employee other than the employee actually engaging in the protected activity. Why would Congress, having taken the step of prohibiting retaliation, left employers free to retaliate with impunity against third persons? Why would Congress, having encouraged protected activity on behalf of other employees, left the beneficiary of that protected act exposed to retaliation? Of course, Congress could have removed all doubt on the point by explicitly covering claims of third-party retaliation. But Congress' failure to make the point explicit does not preclude this Court from filling the gap left by Congress (if such gap exists), at least where, as here, the statute is ambiguous. See McDonnell v. Cisneros, 84 F.3d 256, 262 (7th Cir. 1996) (Posner, J.) (extending Title VII's anti-retaliation provision to a situation "apparently not foreseen by Congress," there being no reason other than "pure oversight" for the omission).<7> As stated in the leading treatise on statutory interpretation: [W]here an issue arises within a general area covered by statute but for which the legislature has not made specific provision so as to preclude a judicial finding of any specific legislative intent, the court must discern the applicable legislative intent by what is necessarily an act of projection starting from the areas where legislative intent is readily discernible and projecting to fair and reasonable corollaries of that intent for the specific issue before the court. Courts cannot avoid the problem by refusing to apply the statute in such a case on the ground that the legislature has not yet extended the statute to make it clearly apply. 2A N. SINGER, SUTHERLAND STATUTORY CONSTRUCTION § 45.09, at 42-43; see also Johnson v. United States, 163 F. 30, 32 (1st Cir. 1908) (Holmes, J.) ("The major premise of the conclusion expressed in a statute, the change of policy that induces the enactment, may not be set out in terms, but it is not an adequate discharge of duty for courts to say: We see what you are driving at, but you have not said it, and therefore we shall go on as before."). The broader context of the statute provides further support for coverage. The basic framework of the anti-discrimination statutes suggests that Congress would not have intended to restrict the protections of the anti-retaliation provisions to cases of first-person retaliation. The anti-discrimination statutes encourage employees to engage in protected activity on behalf of their fellow employees. The statutes permit employees to piggy-back on the charges of other employees challenging similar discriminatory practices. At bottom, virtually any complaint of discrimination has "class" consequences in the sense that it seeks to root out discrimination against a protected group. The restrictive view of statutory coverage flows from an "every man for himself" perspective. The anti-discrimination statutes adopt a different perspective: "all men are brothers." Extending the anti-retaliation provisions to third-party retaliation produces a "'statutory scheme'" that is "'coherent and consistent.'" Robinson, 519 U.S. at 340. Indeed, any other interpretation would conflict with the manifest purpose of the anti-retaliation provisions. The anti-retaliation provisions exist for an obvious purpose: "[m]aintaining unfettered access to statutory remedial mechanisms." Id. at 346. The peculiar procedural plan for enforcing the anti-discrimination statutes, relying upon individual citizen complaints, requires that persons not be deterred from filing charges or otherwise opposing practices made unlawful by these statutes. See, e.g., EEOC v. Board of Governors of State Colleges and Univs., 957 F.2d 424, 431 (7th Cir. 1992); cf. Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 292 (1960) (noting that "effective enforcement" of the FLSA could be expected only "if employees felt free to approach officials with their grievances"). The "filing of charges and the giving of information by employees is essential to the Commission's administration of [the anti-discrimination statutes]" and "the carrying out of congressional policy embodied in [these statutes]." Pettway v. American Cast Iron Pipe Co., 411 F.2d 998, 1005 (5th Cir. 1969); accord EEOC v. Cosmair, Inc., 821 F.2d 1085, 1090 (5th Cir. 1987); Garcia v. Lawn, 805 F.2d 1400, 1405-06 (9th Cir. 1986). Aware of the importance of private complaints to the enforcement of the anti-discrimination statutes, Congress, in enacting anti-retaliation protection, "'unmistakably intended to ensure that no person would be deterred from exercising his rights under [these statutes] by the threat of discriminatory retaliation." EEOC v. Ohio Edison Co., 7 F.3d 541, 543 (6th Cir. 1993). The district court's interpretation of the anti-retaliation provisions flies in the face of this "unmistakable" congressional intent. Under the district court's interpretation, for example, an employer could discharge workers in retaliation for organized opposition activities, thereby undermining the ability of unions or other organizations to wage campaigns against discriminatory practices; to the extent the workers themselves had not engaged in opposition activity, they would not be protected by the statute. An employer could also discourage contacts with union representatives, co-workers, or attorneys, by retaliating against individuals on whose behalf such representatives act (whether in opposing discrimination or filing charges). At the very least, the court's approach would invite a climate that is hostile to the assertion of statutory rights. In fact, under the district court's interpretation, an employer could openly use the threat of third-party retaliation to ban the very activities protected by the anti-retaliation provisions. An employer could adopt a policy of seeking reprisals in any case in which an employee protested discrimination, filed a charge with the Commission, or otherwise participated in the enforcement process. That policy could require the termination of any relative, friend, or co-worker of the individual engaging in protected activity. As the Supreme Court has observed, "it needs no argument to show that fear of economic retaliation" might induce employees "quietly to accept [unlawful] conditions." Mitchell, 361 U.S. at 292. If anything, the fact that the retaliation is against a third party only enhances the pressure on the employee contemplating the exercise of protected activity. Where an employee has already been the target of discrimination, the threat of economic sanction may be outweighed by the employee's personal desire to vindicate her statutory rights. If the employer, however, could reach into the workforce to target other employees, the aggrieved employee may be more reluctant to assert her statutory rights. In that case, the employee risks not only her own economic future, which has already been threatened by the employer, but the future of her fellow workers as well. See EEOC COMPLIANCE MANUAL (BNA) 614:0003 (threat of retaliation against an individual "related to or associated with" the person contemplating protected activity could well "discourage that person from pursuing those rights"). A court should avoid any interpretation of a statute that leads to an absurd or irrational result. See Green v. Bock Laundry Machine Co., 490 U.S. 504, 527 (1989) (Scalia, J., concurring); 2A N. SINGER, SUTHERLAND STATUTORY CONSTRUCTION § 46.07, at 126. The district court's interpretation leads to just such a result, permitting employers to retaliate with impunity, the very thing that the anti-retaliation provisions are designed to prevent. Further support for the broader reading of the anti-retaliation provisions comes from the large body of case law, interpreting the anti-retaliation provisions in a flexible manner. Courts have routinely eschewed an overly technical interpretation of the anti-retaliation provisions where such an interpretation would undermine the manifest purpose of these provisions. Courts have extended anti-retaliation protection to activities not explicitly referenced in the statute where a contrary reading would produce a "chilling effect on employees' assertion of rights." E.g., Brock v. Casey Truck Sales, Inc., 839 F.2d 872, 879 (2d Cir. 1988). "[C]ourts have frequently applied the retaliation provisions of employment statutes to matters not expressly covered by the literal terms of these statutes where the policy behind the statute supports a non-exclusive reading of the statutory language." Ohio Edison, 7 F.3d at 545 (collecting cases). As this Court stated in Brock v. Richardson, a case involving the anti-retaliation provision of the FLSA, "courts interpreting the anti-retaliation provision have looked to its animating spirit in applying it to activities that might not have been explicitly covered by the language." 812 F.2d at 124 (collecting cases). The "key to interpreting the anti-retaliation provision is the need to prevent employees' 'fear of economic retaliation' for voicing grievances about [illegal] conditions." Id.; see also McDonnell, 84 F.3d at 262 (interpreting Title VII's anti-retaliation provision to cover protected activity that "does not come within the scope" of the provision "if interpreted literally" to avoid creating a "gaping hole" in the protections of the provision); Haley v. Fiechter, 953 F. Supp. 1085, 1092 (E.D. Mo. 1997) ("Courts which have been called upon to interpret different federal whistleblower statutes have uniformly held that such statutes should be broadly construed, even where the conduct involved did not come under the literal terms of the statute, in order to further their remedial purpose."), aff'd, 138 F.3d 1245 (8th Cir. 1998). Notably, some of this case law, which arises under parallel anti-retaliation provisions in the NLRA and the FLSA, pre-dates the enactment of either the ADA or the ADEA. See, e.g., NLRB v. Dal-Tex Optical Co., 310 F.2d 58, 62 (5th Cir. 1962) (noting that several federal courts had extended the protections of the NLRA's anti-retaliation provision to individuals not explicitly covered by the provision where retaliation against such individuals "would restrain or coerce" the exercise of statutory rights); Goldberg v. Zenger, 15 WH Cases 237, 238 (D. Utah 1961) (finding that a worker who had not actually "filed" a complaint was still protected against retaliation under the FLSA because the court preferred "straining the strict definition of a word" to "distorting the apparent intent and meaning of the statute in the context in which it is used"); In re Briggs Mfg. Co., 75 NLRB No. 65, 21 LRRM 1056, 1057 (1947) (ruling that the anti-retaliation protection under the NLRA must be liberally construed to assure that employers could not "discriminate with impunity against other members of the working class" or otherwise impose deterrents "against free recourse to Board processes"). It is fair to assume that, in enacting similar anti-retaliation provisions in the ADA and the ADEA, Congress intended to adopt this flexible approach to anti-retaliation protection. See, e.g., Lorillard v. Pons, 434 U.S. 575, 580-81 (1978) ("Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation" when it "adopts a new law incorporating sections of [the prior statute]."). The district court expressed concern that a broad reading of the anti-retaliation provisions would be difficult to administer because "the type of relationship which would confer [third-party] standing is undefined." Memorandum (March 29, 2000) at 8. This concern is misplaced.<8> The elements of a third-party retaliation claim are simple to state. The claimant must demonstrate that he or she was subjected to an adverse action because of the protected activity of some other individual. For coverage purposes, the precise relationship between the claimant and the individual engaging in the protected activity is irrelevant. The retaliation is actionable if the claimant can establish a causal link between the adverse action and the protected activity of the other individual. The causation standard will ensure that a ruling in favor of coverage does not open the floodgates to claims of third-party retaliation. In many cases, there will be no connection between the adverse action against Employee A and the protected activity of Employee B and, thus, no basis for a claim. Indeed, it seems likely that viable third-party retaliation claims will arise only when there is some affiliation between the employee suffering the adverse employment action and the employee engaging in the protected activity, either because the employee engaging in the protected activity is acting on the behalf of the employee targeted for retaliation or because the two employees have an obvious familial connection (e.g., husband-wife, father-son). The intent of the anti-retaliation provisions can be fully realized without sinking the courts in a quagmire of third-party retaliation claims.CONCLUSION This Court should hold that the anti-retaliation provisions of the ADA and the ADEA cover claims of third-party retaliation. Respectfully Submitted, GWENDOLYN YOUNG REAMS Associate General Counsel PHILIP B. SKLOVER Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ROBERT J. GREGORY Senior Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. February 23, 2001 Washington, D.C. 20507 CERTIFICATE OF COMPLIANCE I, Robert J. Gregory, hereby certify that this brief complies with the type-volume limitations imposed under F.R.A.P. 32(a)(7)(B)(i) and F.R.A.P. 29(d). The brief contains 6913 words. Robert J. GregoryCERTIFICATE OF SERVICE I, Robert J. Gregory, hereby certify that on this 23rd day of February, 2001, two copies of the attached brief were sent by first-class mail, postage prepaid, to each of the following counsel of record: James C. Oschal Rosenn, Jenkins & Greenwald 15 South Franklin Street Wilkes-Barre, PA 18711 Joseph A. O'Brien Oliver, Price & Rhodes 220 Penn Avenue P.O. Box 1409, Suite 300 Scranton, PA 18501-1409 Robert J. Gregory ADDENDUM 1 The EPA is part of the Fair Labor Standards Act ("FLSA") and, thus, is subject to the FLSA's anti-retaliation provision, 29 U.S.C. § 215(a)(3). 2 Because Fogleman brings his claims under the ADA and the ADEA, our brief focuses on the anti-retaliation provisions of those two statutes. The analysis, however, would be the same under the anti-retaliation provisions of Title VII and EPA, which closely parallel those found in the ADA and the ADEA. 3 Arguably, this case is controlled by this Court's decision in Brock. In that case, this Court held that the FLSA's anti-retaliation provision covered the claim of an individual who had been fired from his job because of the employer's mistaken belief that the individual had filed a complaint with the Department of Labor. This Court rejected the employer's argument that there was no coverage under the FLSA because the claimant had not in fact engaged in protected activity, as purportedly required by the literal terms of the statute. This Court stressed that it was "evident that the discharge of an employee in the mistaken belief that the employee has engaged in protected activity creates the same atmosphere of intimidation as does the discharge of an employee who did in fact complain of FLSA violations." Id. at 125. Despite the arguably controlling nature of the Brock precedent, our brief assumes that the legal issue raised by this appeal is an open question in this Circuit and argues the case accordingly. As a general matter, courts have split over the third-party retaliation issue. Compare EEOC v. Ohio Edison Co., 7 F.3d 541 (6th Cir. 1993) (claims of third-party retaliation covered); Thomas v. American Horse Shows Ass'n, Inc., 1999 WL 287721 (E.D.N.Y. April 23, 1999) (same), aff'd on other grounds, 2000 WL 232041 (2d Cir. Jan. 25, 2000); EEOC v. Nalbandian Sales, Inc., 36 F. Supp. 2d 1206 (E.D. Cal. 1998) (same); Murphy v. Cadillac Rubber & Plastics, Inc., 946 F. Supp. 1108 (W.D.N.Y. 1996) (same); De Medina v. Reinhardt, 444 F. Supp. 573 (D.D.C. 1978) (same), aff'd in part and remanded in part, 686 F.2d 997 (D.C. Cir. 1982) with Smith v. Riceland Foods, Inc., 151 F.3d 813 (8th Cir. 1998) (claims of third-party retaliation not covered); Holt v. JTM Indus., Inc., 89 F.3d 1224 (5th Cir. 1996) (same). 4 The district court suggested that "[i]n most cases in which the spouse of a complainant suffers retaliation, it may be that the complainant might have standing to pursue the claim of retaliation, since the complainant would suffer financially from such action as well." Id. at 9. The court appears to be confusing the issue of Article III "standing" and the question of statutory coverage. In this case, for example, there is no question that Fogleman has suffered an injury in fact and, thus, has "standing" to be in court. The question is whether the statutes at issue can be interpreted to cover a claim of retaliation against Fogleman based on the protected activity of his father. The problem with the district court's interpretation is that it would limit coverage to cases in which the employer discriminates against an employee because of the protected activity of that employee. Thus, in the district court's hypothetical, even if the retaliation against one spouse would give the complainant spouse "standing" to sue, the complainant spouse would still have no claim to assert because, under the district court's interpretation, the relevant statutes only prohibit retaliation when the retaliation is against the same individual who engaged in the protected activity. It is only if one takes a flexible view of the statute that a claim of retaliation against one spouse because of the protected activity of another becomes actionable under the anti-retaliation provisions. 5 The ADA, in fact, takes the matter one step further, providing explicit protection for individuals who "aid[] or encourage[] any other individual in the exercise or enjoyment of, any right granted or protected by [the Act]." 42 U.S.C. § 12203(b). 6 That is not to say that Fogleman was not a beneficiary of his father's complaint in the same way that all employees in a workplace benefit from protected activity that roots out discriminatory treatment. See McKennon, 513 U.S. at 358-59. 7 Although not the issue squarely presented in that case, the McDonnell court embraced the view, in dicta, that Title VII covers third-party retaliation claims. Id. (opining that Title VII would cover "collective punishment" retaliation against individuals other than the complaining party). 8 Part of the court's confusion may have stemmed from its mistaken belief that this case involves an issue of "standing." As discussed above (supra n.4), there is no doubt that Fogleman suffered the kind of injury that would give him "standing" to sue -- he was terminated from his job. The question is whether the anti-retaliation provisions provide a cause of action for that injury. The answer to that question turns upon the proper interpretation of those provisions, not upon any issue of "standing."