Most people understand employment discrimination as workplace conduct targeting individuals based on their own protected characteristics, such as race, gender, national origin, or religion. However, an increasingly relevant issue is associational discrimination—when an employee suffers discrimination not because of their own identity but because of their relationship with or advocacy for individuals in a protected class. Courts have ruled that employers cannot discriminate against an individual based on the protected characteristics of a family member, such as a spouse or child. But what happens when an employee is discriminated against based on the protected characteristics of a group they wish to advocate for?
A federal judge in Minnesota recently held that a heterosexual and cisgender female principal who was allegedly harassed out of her job position after she expressed support for LGBTQ+ youth did not suffer employment discrimination.1 In Mary Kay Thomas v. Marshall Public Schools, the judge held Title VII of the Civil Rights Act only protected against discrimination based on an individual’s own protected characteristics, not the protected characteristics of associates. While Ms. Thomas faced public backlash and was expressly forced out of her principal position due to anti-LGBTQ+ hostility, the judge believed her protected characteristics—straight, white, female—were not the reasons for the discrimination against her.
Does this ruling reflect the purpose of Title VII and the state of the law?
Title VII was enacted by Congress to rid workplaces of unlawful discrimination, and to that end, courts have generally recognized associational discrimination under Title VII. In the typical associational discrimination claim, an employer discriminates against an employee due to animus towards a social relationship between an employee and a third party on the basis of a protected characteristic. For example, in Parr v. Woodmen of the World Life Insurance Co.,2 a white employee successfully alleged race discrimination because his employer fired him for being married to a black woman. The Eleventh Circuit (covering Alabama, Georgia, and Florida) held that when a plaintiff claims discrimination based upon an interracial association, “he alleges, by definition, that he has been discriminated against because of his race.” Courts in the Second, Third, Fifth, and Seventh Circuits have also recognized associational discrimination claims in the relationship context. See, e.g., Holcomb v. Iona College, 521 F.3d 130, 138 (2d Cir. 2008); Kengerski v. Harper, 6 F.4th 531, 538 (3d Cir. 2021); Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 156 F.3d 581, 589 (5th Cir. 1998), vacated in part on other grounds, 182 F.3d 333 (5th Cir. 1999); Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339, 349 (7th Cir. 2017) (en banc).
The Sixth Circuit (covering Michigan, Ohio, Kentucky, and Tennessee) goes further and explicitly holds that Title VII prohibits discrimination against individuals for their advocacy. In Barrett v. Whirlpool Corp., the court addressed whether Title VII covered white plaintiffs who were discriminated against based on their friendship with and advocacy for black coworkers. The Sixth Circuit held that “as long as a plaintiff offers proof that she was, in fact, discriminated against because she advocated for protected employees, she may state a discrimination claim under Title VII.”3
The district judge in Mary Kay Thomas declined to follow the Sixth Circuit and rejected Ms. Thomas’s associational discrimination claim, ruling that advocacy alone, without a social relationship with a member of a protected class, was insufficient to gain the protection of Title VII. The judge focused on Title VII’s statutory language, which makes it unlawful for an employer to “discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1) (emphasis added). Because Ms. Thomas’s own protected characteristics were not the reason for the school district’s discrimination, the judge held that she could not show discrimination under Title VII.
What else does Title VII Say?
The judge ignored a different subsection of that same statute that does not include the phrase “because of such individual’s [protected characteristic].” Title VII also states that “an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” 42 U.S.C. § 2000e-2(m). At least two courts have considered, but not yet ruled, whether this provision prohibits discrimination based on association or advocacy for persons in a protected class. See Carter v. Luminant Power Servs. Co., 714 F.3d 268 (5th Cir. 2013); Macdonald v. Brewer Sch. Dep’t, 651 F. Supp. 3d 243 (D. Me. 2023). While Ms. Thomas did not contest the judge’s Title VII ruling on appeal, she had a strong argument that sex discrimination—i.e., anti-LGBTQ+ animus—was a motivating factor for her termination. Perhaps further litigation under this subsection will encourage other circuits to follow the Sixth Circuit and hold that Title VII prohibits discrimination against advocates for protected groups.
As our society becomes more inclusive, more people express support for others from marginalized groups whose identities they do not share. Given the increasing politicization of workplace dynamics, employees who speak out on behalf of marginalized groups may find themselves vulnerable to workplace retaliation. In the past year, our Legal Division’s Civil Litigation Department has received numerous reports of discrimination against non-Palestinian employees who show support for Palestinians. More recently, a teacher in Idaho was ordered to take down the below poster because school district members objected to the image of different races together.4
While courts consistently interpret Title VII to cover associational discrimination in the relationship context, they disagree on whether Title VII protects those who face discrimination for their advocacy for third parties, even when employers admit animus against the third party’s protected characteristics. As we see increased “anti-DEI” attacks against employees, professors, and students for their associations with marginalized communities—including Palestinians, queer people, and people of color—courts should consider the full scope of Title VII’s protections to ensure that employees are not penalized for standing in solidarity with protected communities. To do so would violate the purpose of Title VII – eliminating discrimination in the workplace.
