Retaliation's reach under Title VII extended again

Jill Jensen-Welch Iowa Employment & Labor Law Dickinson Law Firm Des Moines Iowa

Posted on 01/25/2011 at 11:10 AM by Jill Jensen-Welch

The U.S. Supreme Court extended Title VII's anti-retaliation provision to third parties, such as fiancés and close family members, in Thompson v. North American Stainless.  It did so in a unanimous 8-0 decision (newest Justice Kagan not participating) written by Justice Scalia, who is arguably the most conservative justice on the Court. Eric Thompson and Miriam Regaldo worked for North American Stainless (NAS) and they were engaged.  Regaldo filed a charge of employment discrimination against NAS.  Three weeks after NAS was notified of her charge, her fiancé, Thompson was fired.  Two questions were presented to the Supreme Court, and its answers were as follows. 1. Was Thompson’s firing unlawful?  Yes. Based on Thompson’s version of the facts (which the court was required to believe on review of a summary judgment ruling), the court easily concluded that he was subjected to unlawful retaliation under the Burlington Northern standard.  “We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.”  NAS had argued against this outcome using the slippery-slope defense: That a decision favorable to Thompson would leave employers at risk anytime adverse action was taken against anyone connected to a complaining employee—including a girlfriend or boyfriend, a friend, or even a mere trusted co-worker.  The Court decided third parties were protected from retaliation under Title VII, but refused to draw a bright line as to who was and was not protected.  It provided some book ends, however.  “Firing a close family member will almost always” be illegal, but a “milder reprisal of a mere acquaintance would almost never” be illegal.  The Court tried to assuage employer concerns by emphasizing that the standard to be applied is objective, and not governed by the subjective feelings of a plaintiff. 2. Can Thompson sue under Title VII?  Yes. Even if Thompson was retaliated against under Title VII, a separate and more difficult question was whether he could sue on his own.  Although it defines retaliation broadly, Title VII only allow persons “claiming to be aggrieved” under the law to bring “a civil action.”  The Court rejected the “Article III standing” standard of “injury in fact” from Title VIII housing discrimination cases as too broad, and the “engaged in protected activity” standard from Title VII’s definition of retaliation as too narrow.  It settled for the “zone of interests” standard for “aggrieved persons” as being just right.  That standard is also used in Administrative Procedure Act cases.  It requires that the plaintiff fall within the zone of interests sought to be protected under the statute that forms the legal basis for his complaint such that Congress intended to permit a lawsuit.  Applying the zone of interests test to Thompson, the Court held that he could sue because he was an employee of NAS, protecting him would fulfill the purposes of Title VII, and he was an intended target of NAS’s anger at his fiancé’s discrimination charge. Justices Ginsberg and Breyer wrote a separate concurrence to add that the decision was in line with the EEOC’s Compliance Manual and two appeals court decisions interpreting a similar provision of the National Labor Relations Act.  Employers, if there was any doubt in your minds whether persons closely associated with complaining employees had retaliation protection—at least under Title VII—then those doubts should be erased.  Any employee who is subjected to an adverse action because his fiancée, or other close family member, engaged in protected activity under Title VII can personally sue for relief.  Whenever you get a complaint of discrimination from an employee, determine who is closely associated with that employee to define who is within the ever-widening circle of retaliation protection.  Do that before you take adverse action against third parties who are not involved in the underlying discrimination charge, but who may have some close association with the complainant.

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