On January 24, 2011, the United States Supreme Court issued its
unanimous decision in Thompson v. North American Stainless
(562 U.S. ___ (2011)) on the issue of who is protected by the
anti-retaliation provisions of Title VII. The Court's decision
significantly expanded the scope of employees who are protected by
the statute, and will have a considerable impact on employers
dealing with charges and investigations regarding discrimination
and harassment.
Relevant Statute: Title VII is a federal statute
that prevents discrimination in employment based on race, color,
religion, sex, and national origin. The statute prohibits employers
from taking any adverse employment action against an applicant or
employee, including failure to hire, demotion, and termination,
based on the above-listed factors. The statute also contains an
anti-retaliation provision, which prohibits employers from
retaliating against individuals who either allege discrimination or
harassment, or who participate or assist in investigations
regarding discrimination or harassment. In Burlington Northern
and Santa Fe Railway v. White, 548 U.S. 53 (2006), the United
States Supreme Court interpreted the anti-retaliation provision to
prohibit any actions by an employer that would would dissuade
"a reasonable worker from making or supporting a charge of
discrimination."
Factual Background and Procedural History: The
plaintiff, Eric Thompson, and his fiancée, Miriam Regalado,
were both employees of the defendant corporation, North American
Stainless ("NAS"). Ms. Regalado filed a gender
discrimination claim against NAS, and the Equal Employment
Opportunity Commission ("EEOC") notified NAS about that
charge. Approximately three weeks after NAS learned of the charge
filed by Ms. Regalado, the company fired Mr. Thompson.
Mr. Thompson filed a charge with the EEOC, and after attempts at
settling the case with the EEOC proved unsuccessful, he filed a
claim under Title VII. Mr. Thompson alleged that NAS fired him in
order to retaliate against his fiancée for filing a charge
of discrimination. The district court dismissed Mr. Thompson's
claim, stating that Title VII does not allow third parties to sue
for retaliation. Mr. Thompson appealed the case to the Sixth
Circuit Court of Appeals, who initially reversed the district
court's decision, but later reconsidered its decision. The
Sixth Circuit Court of Appeals ultimately concluded that because
Mr. Thompson himself had not engaged in protected activity, he
could not bring a claim under Title VII.
Supreme Court Opinion: The United States Supreme
Court reversed the Sixth Circuit's opinion and held unanimously
that (1) North American Stainless violated Title VII if it fired
Mr. Thompson in retaliation for Ms. Regalado's complaint; and
(2) Title VII provides Mr. Thompson with a cause of action against
his former employer. The Court first concluded with "little
difficulty" that if the facts alleged by Mr. Thompson are true
(which it had to assume for the purpose of its decision), then Mr.
Thompson's termination was the type that was supposed to be
protected by the anti-retaliation provisions of the statute.
Specifically, the Court stated that the anti-retaliation provisions
of Title VII have been interpreted more broadly than the
anti-discrimination provisions of the statute, and they include any
conduct that would dissuade a reasonable employee from reporting
discrimination or harassment. The court found it
"obvious" that a reasonable employee would be dissuaded
from reporting harassment or discrimination if she thought that her
fiancé would be fired. The Court declined to define the
class of individuals who would be protected under the third-party
protections of this decision (i.e., how far the protections of the
statute go). The Court did state, however, that a close family
member will almost always be protected, while a mere acquaintance
will almost never be protected. The remaining class of individuals
(in between close family members and mere acquaintances) are left
unaddressed.
The Court also addressed the question of whether Mr. Thompson had
standing to sue NAS under the statute. Title VII allows "the
person claiming to be aggrieved" to bring a claim, and the
Court struggled somewhat with the question of whether Mr. Thompson
was a "person claiming to be aggrieved." The Court
ultimately ended at a "middle ground" between the
interpretation of the term "person claiming to be
aggrieved" suggested by NAS and the interpretation suggested
by Mr. Thompson. The Court stated that "any plaintiff with an
interest arguably sought to be protected" by Title VII may
bring suit under the statute. While this would include someone like
Mr. Thompson, whose employment was directly affected by his
fiancée's report under the statute, it would not include
an individual whose interests are only peripherally affected by the
statute (a stockholder of a company that had engaged in
discrimination, for example).
What this Case Means for Employers: The fact that
the Court decided this case unanimously is significant. It is a
further indication that all members of the Court, including the
more conservative members (who tend to be pro-business in their
decisions), believe that the anti-discrimination provisions of the
various federal statutes are important and should be strictly
enforced. The Court has issued a handful of decisions over the past
few years regarding anti-retaliation provisions that have expanded
protections for employees who report discrimination or participate
in investigations regarding discrimination. Additionally, the
number of retaliation claims filed by individuals has risen over
the past few years, and the EEOC has made clear that it will pursue
charges of retaliation vigorously.
Employers should always exercise caution when dealing with
employees who have filed charges or lawsuits regarding
discrimination or harassment, or who have participated in
investigations of the same. This decision teaches that the
employees who participated in the charges or investigations are not
the only ones who are protected, but that their family members, and
maybe even friends, who are also employed by the employer may also
be protected. The scope of protection for the non-reporting
employees has not yet been determined, so employers should avoid
any appearance of a retaliatory motive in making employment
decisions
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.