The Fifth Circuit Rules That Title VII Does Not Apply to Non-Employees

The Fifth Circuit Court of Appeals recently clarified that non-employees do not have standing to sue under Title VII, even if they are an object of intentional retaliation.

Title VII prohibits employment discrimination based on race, color, religion, sex and national origin, and applies to employers with 15 or more employees. An employee who complains of discrimination and suffers an adverse action by the employer because of the complaint, may bring a retaliation claim under Title VII based on the employer’s actions against such employee. Additionally, any employee “aggrieved” by employer’s retaliation can sue under Title VII. For example, where an employee makes a complaint of discrimination and a company fires another employee because he is a fiancé or a parent of the employee who complained, the terminated employee may have a cause of action under Title VII as an aggrieved person.

The plaintiff in Simmons v. UBS Financial Services, Inc., attempted to stretch the “aggrieved person” analysis even further. He was not employed by UBS, but argued that he could sue UBS under Title VII because his daughter, who was a UBS employee, complained of pregnancy discrimination, and, in retaliation for her complaint, UBS prohibited Simmons from selling insurance products to their clients.

The Fifth Circuit rejected the argument, noting:

“Title VII claims require employment relationship between plaintiff and defendant. James Simmons essentially asks this court to adopt an exception where a nonemployee (Simmons) is the intentional target of an employer’s retaliatory animus against one of its employees (Simmons’s daughter). That we cannot do. As a nonemployee, Simmons asserts interests that are not within the zone that Title VII protects.”

Simmons v. UBS Financial Services, Inc. (Aug. 24, 2020)

BOTTOM LINE: Only employees can sue their employers for Title VII violations. Any company that has 15 or more employees should have an EEOC policy manual for employees and provide appropriate training for employees and managers, as the retaliation and discrimination claims under Title VII comprise the majority of employment-related claims against companies.

Leiza Dolghih is a labor and employment board certified partner at Lewis Brisbois Bisgaard & Smith LLP in Dallas, Texas and a Co-Chair of the firm’s Trade Secrets and Non-Compete Disputes national practice. Her practice includes commercial, intellectual property and employment litigation. You can contact her directly at Leiza.Dolghih@LewisBrisbois.com or (214) 722-7108.

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