On 24 January 2011 the U.S. Supreme Court unanimously held in
Thompson v. North American Stainless, LP (No. 09-291),
that an employee allegedly discharged because his fiancée
filed a charge of sex discrimination against their mutual employer
has a cause of action against the employer for retaliation under
Title VII of the Civil Rights Act of 1964.
Petitioner Eric Thompson and his fiancée Miriam Regaldo were
employees of Respondent North American Stainless (NAS). In February
2003, Regaldo filed a charge of sex discrimination against NAS with
the EEOC. NAS fired Thompson three weeks later. Thompson then filed
his own charge with the EEOC claiming that NAS terminated his
employment as retaliation against Regaldo for her charge.
The U.S. District Court for the Eastern District of Kentucky
granted summary judgment in favor of NAS, concluding that Title VII
did not permit third-party retaliation claims. The U.S. Court of
Appeals for the Sixth Circuit affirmed, reasoning that while
Regaldo might have a claim for retaliation based on Thompson's
termination, Thompson himself could not bring a retaliation claim
because he did not engage in any protected activity.
In an 8-0 decision written by Justice Scalia (Justice Kagan was
recused), the Supreme Court reversed, holding that Thompson did
have standing to bring a claim for retaliation under Title VII. In
so holding, the Court addressed two questions: (1) did
Thompson's termination constitute unlawful retaliation; and (2)
if yes, did Thompson have a cause of action under Title VII?
The Court dispensed with the first question quickly, stating
"we have little difficulty concluding that if the facts
alleged by Thompson are true, then NAS's firing of Thompson
violated Title VII." Five years ago, in Burlington N.
& S. F. R. Co. v. White, the Court held that Title
VII's anti-retaliation provision prohibits any employer action
that might dissuade a reasonable employee from making or supporting
a charge of discrimination. Under that standard, the Court held,
there is no dispute that an employee might be dissuaded from filing
a charge of discrimination if she knew that her employer might
respond by terminating her fiancé.
The Court acknowledged NAS's argument that an employer would be
at risk any time it fired an employee who happened to have a
connection to another employee who filed an EEOC charge, but it
declined to identify any fixed class of relationships for which
third-party reprisals are unlawful. The Court did note that firing
a close family member will almost always meet the Burlington
Northern standard and that a milder reprisal toward a mere
acquaintance will almost never do so. Beyond that, the significance
of any alleged act of retaliation will depend on the particular
circumstances.
Turning to what it considered the more difficult question, the
Court held that Thompson had standing to sue his employer for its
alleged violation of Title VII because he is a "person
aggrieved" within the meaning of the statute. Under Title VII,
"a civil action may be brought . . . by the person claiming to
be aggrieved." 42 U.S.C. §2000e-5(f)(1). The Court held
that "person aggrieved" must be construed more narrowly
than the outer boundaries of Article III standing under the U.S.
Constitution, but it should not be limited to only those employees
who engage in protected activity themselves. The Court held that
the proper construction was between these two extremes: an
individual is a "person aggrieved" for purposes of Title
VII if he falls within the "zone of interests" protected
by Title VII.
In this case, Thompson fell well within Title VII's zone of
interest because he was NAS's employee, and Title VII's
purpose is to protect employees from the unlawful actions of their
employers. Moreover, the Court held, Thompson was not an accidental
victim of retaliation. Accepting the facts as alleged, NAS
deliberately targeted Thompson in order to punish Regaldo for
filing her charge of sex discrimination.
The Court's refusal to specify which relationships are
sufficient to sustain a third-party retaliation claim and its
adoption of the "zone of interests" standard to determine
who may bring a claim may cause a significant increase in new
retaliation claims under Title VII. Although any plaintiff still
will have to prove causation, employers now may be held liable for
actions taken against an employee who simply has a relationship
with another employee who engaged in protected activity. In the
wake of this decision, employers should ensure they have robust
anti-discrimination and anti-retaliation policies in place. And
before terminating an employee, employers should analyze, to the
extent practicable, whether that employee has a relationship with
any other employee who has engaged in protected activity under
Title VII.
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.
