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The 3rd U.S. Circuit Court of Appeals recently became the first court to recognize a cause of action for a third party “perceived” to be engaging in protected activity, even when he was not. The court also held that the anti-retaliation provisions of the Americans with Disabilities Act prohibit an employer from taking adverse employment action against a third party in retaliation for another’s protected activity, while finding that the anti-retaliation language of the Age Discrimination in Employment Act and other anti-discrimination law does not offer such protection. The court’s decision in Fogleman v. Mercyboth expanded and limited the protections offered to third parties by anti-discrimination statutes. THEORIES OF RETALIATION Gregory Fogleman brought suit against his former employer, Mercy Hospital Inc., alleging three theories of illegal retaliation under the anti-retaliation provisions of the ADA, ADEA and the Pennsylvania Human Relations Act. Fogleman’s father, Sterril Fogleman, had been an employee of Mercy for 17 years before leaving the hospital in 1993. Fogleman’s father sued Mercy, claiming that he had been forced out of his job because of his age and the loss of his sight in one eye, in violation of the three statutes. Mercy settled with Sterril Fogleman shortly before trial. Greg Fogleman had been employed by Mercy as a security guard for 18 years before his termination in 1996. He asserted in his lawsuit that he was repeatedly questioned by the hospital administration about his father’s lawsuit, but that he had never discussed the case with his father and, therefore, had nothing to say. Although Mercy claimed to have terminated Greg Fogleman for job-related reasons, he claimed that he was terminated in retaliation for his involvement in, and support of, his father’s lawsuit against Mercy. The following were Greg Fogleman’s three theories of illegal retaliation: That it is unlawful for an employer to take adverse employment action against a third party in retaliation for another’s protected activity; that is, that Greg Fogleman was terminated in retaliation for his father’s having sued Mercy for alleged age and disability discrimination. That it is unlawful for an employer to take adverse employment action against an employee for his or her perceived engagement in protected activity; that is, that Greg Fogleman was terminated in retaliation because Mercy perceived him as assisting his father with his lawsuit (even if, in actuality, he was not). That it is unlawful for an employer to retaliate against an employee for refusing to participate in an investigation for another’s claim; that is, that Greg Fogleman was terminated for refusing to cooperate with Mercy in the investigation of his father’s claims of discrimination. The U.S. District Court for the Middle District of Pennsylvania granted summary judgment to Mercy, ruling that Greg Fogleman’s theories of retaliation did not present viable claims. In the appeal, the 3rd Circuit disagreed in part and reversed in part. THIRD-PARTY CLAIMS The court initially restated the well-settled law that in order to establish a case of illegal retaliation under the various anti-discrimination statutes, a plaintiff must show the following: 1. Protected employee activity. 2. Adverse action by the employer. 3. A causal connection between the protected activity and the adverse action. The question presented in this case was whether Greg Fogleman had engaged in “protected activity” so as to satisfy the first element of a retaliation claim. The ADA, the ADEA and the PHRA contain nearly identical anti-retaliation provisions (as does Title VII). For example, the ADA’s anti-retaliation provision states: “No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under this chapter” (42 U.S.C. � 12203(a)). The court initially noted that “the plain text of the anti-retaliation provisions requires that the person retaliated against also be the person who engaged in the protected activity.” In fact, the court found the statutes to be “unambiguous” on this point. Nevertheless, the court found that the plain language of the statutes conflicted with the policies underlying them. “There can be no doubt that an employer who retaliates against the friends and relatives of employees who initiate anti-discrimination proceedings will deter employees from exercising their protected rights,” the court said. In the end, however, the court found “plausible” (but not compelling) policy explanations for excluding third-party retaliation claims and therefore sustained the district court’s grant of summary judgment with respect to Greg Fogleman’s first theory of retaliation. The court found that the ADA, unlike the ADEA and PHRA (and Title VII), includes a second anti-retaliation provision which more broadly prohibits retaliation against “any individual … on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of … his or her ADA rights.” This provision “does not expressly limit a cause of action to the particular employee that engaged in protected activity,” the court said. As such, the court reversed the district court’s order granting summary judgment to Mercy to the extent that it was based on the district court’s view that Greg Fogleman’s third-party retaliation claim was not viable under the ADA’s second anti-retaliation provision.” ‘PERCEPTION’ CLAIM The Fogleman court finally held that Greg Fogleman’s perception theory of illegal retaliation — that he was terminated because Mercy thought he assisted his father in his lawsuit, even if he did not — presented a valid legal claim. The court found that the language of the anti-discrimination statutes focus on the employer’s subjective reasons for taking adverse action against an employee. As such, it does not matter whether the reasons behind the employer’s discriminatory animus are actually correct. The court gave an example of an employer who refused to hire a prospective employee because he thought the applicant to be Muslim. The court stated that “the employer is still discriminating on the basis of religion even if the applicant he refuses to hire is not in fact Muslim.” In this same vein, the court held that if Greg Fogleman could show “that adverse action was taken against him because Mercy thought that he was assisting his father and thereby engaging in protected activity, it does not matter whether Mercy’s perception was factually correct.” The court’s recognition of a “perception of” claim of retaliation could substantially expand the coverage of the retaliation provisions in the anti-discrimination statutes. Co-workers of an aggrieved employee, who are subsequently terminated, can now piggyback on their friend’s or family member’s underlying claim of discrimination, regardless of whether they took part in the action or not. As with any claim based upon “perception,” it is difficult for an employer to “prove the negative,” that it did not perceive the co-worker to have been involved in the underlying action. As to Greg Fogleman’s third theory of retaliation, the court never addressed whether or not it is unlawful for an employer to retaliate against an employee for refusing to participate in an investigation for another’s claim because Greg Fogleman’s admission led the court to conclude that he did not actually refuse to cooperate in the investigation. Sidney R. Steinberg is a partner in Post & Schell’s, www.postschell.com, business law and litigation department. He concentrates his national litigation and consulting practice in the field of employment and employee relations law.

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