Most claims of retaliation typically involve an employee who has engaged in protected activity and alleges that he or she experienced adverse action as a result. However, an employer can also violate the anti-retaliation provision of Title VII if, believing that the plaintiff engaged in protected activity, it takes adverse action against the plaintiff on the basis of that belief.

In May, a Pennsylvania district court in the Third Circuit allowed a retaliation claim to proceed under this "perception theory."  In Puidokas v. Rite Aid, Puidokas, a former Rite Aid employee, alleged that her daughter, who worked at the same Rite Aid location, was discriminated against by the male district manager on the basis of her gender. When Puidokas's daughter complained to management and filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), the district manager allegedly attempted to transfer the daughter to another location. When the district manager's attempts to transfer Puidokas's daughter failed, the district manager threatened to transfer Puidokas to another location on the basis of a policy which prohibits employees from working in the same location as a relative. Puidokas was forced to either accept the transfer or resign. She ultimately resigned her employment.

Rite Aid filed a motion to dismiss Puidokas's claim, arguing that Puidokas could not satisfy a key element of her retaliation claim because she had not personally engaged in protected activity. In denying Rite Aid's motion to dismiss, the court held that Puidokas properly alleged that Rite Aid retaliated against her on the basis of its perception or belief that she helped her daughter file an EEOC charge. The court also held that Rite Aid's selective enforcement of its policy combined with the fact that the same district manager sought to transfer both Puidokas and her daughter were enough for Puidokas to state a plausible claim for relief.

Employers can staff their businesses as they choose and may implement and enforce the type of nepotism policy found in this case. However, where the employer suspects that a family member or friends were involved in another employee's filing of litigation, or charges with the EEOC, Department of Labor or other agency, the employer might be better served postponing any personnel decision absent very clear justification.