Title VII Associational Discrimination Claim Requires Proof Harassment was "Severe or Pervasive"
Significant Association with Members of a Protected Class Not Necessary

March 20, 2009

Title VII of the Civil Rights Act of 1964 protects individuals against employment discrimination on the bases of race, color, national origin, sex, and religion. In addition to making it unlawful to discriminate against members of a protected class, Title VII also offers protection to individuals who associate with members of a protected class and experience discriminatory treatment, even if they are not members of a protected class themselves.

In Barrett v. Whirlpool Corp., No. 08-5307 (6th Cir. Feb. 23, 2009), the U.S. Court of Appeals in Cincinnati addressed a lawsuit filed by three Caucasian women who claimed they were discriminated against based upon their friendships with and advocacy for certain African-American co-workers. Examples of the alleged racially discriminatory incidents included:

• overhearing co-workers use racial slurs and telling racist jokes;
• being told “missed you ladies at the [Ku Klux] Klan meeting last night”;
• viewing racial graffiti in various places in the plant;
• being treated differently or being “snubbed” because of the employee’s association with African-American employees;
• receiving less desirable work assignments; and
• not being considered for promotions.

The trial court granted summary judgment in the employer’s favor. On appeal, the Sixth Circuit affirmed in the cases of two of the plaintiffs, but reversed as to the third. The Court’s decision is noteworthy for two reasons.

First, the Court found that no particular degree of association is needed in order to state a claim of associational discrimination under Title VII. The Court stated: “If a plaintiff shows that 1) she was discriminated against at work 2) because she associated with members of a protected class, then the degree of the association is irrelevant.”

Second, the Court held that “only harassment that specifically targeted those who associated with and advocated for African-Americans will result in an actionable hostile work environment claim for such individuals." In the instant case, the Court found that only a few of the alleged discriminatory comments or actions were directed toward the two plaintiffs whose claims were rejected. Most of the harassment alleged by these plaintiffs, albeit crude and racist, was directed at the African-American employees themselves. While the incidents may have been offensive, the Court held they did not suggest discrimination or harassment of these plaintiffs.

According to the Court, the third plaintiff established that she was subject to a regular stream of offensive comments about her relationship with an African-American co-worker and that her relationship allegedly was a reason preventing her from applying for job advancements. Therefore, summary judgment was inappropriate as to this plaintiff.

Barrett reminds employers that all employees should understand that discriminatory comments and actions may affect not only employees of a protected class, but also employees who associate with those members. Clear anti-harassment policies and regular employee training are fundamental in today’s workplace.