On January 24, 2011, the Supreme Court of the United States
issued a unanimous (8-0, Justice Kagan recused herself) decision in
Thompson v. North American Stainless, LP, 131 S. Ct. 863
(2011) that expanded the provisions of Title VII retaliation. In
Thompson, the Supreme Court ruled that Title VII prohibits
third party retaliation. Specifically, the Court found that the
employer violated Title VII by terminating an employee after his
fiancée had filed a charge with the Equal Employment
Opportunity Commission ("EEOC"). After Thompson,
employers now must contend with a different type of retaliation,
one brought by an employee who claims he or she was retaliated
against because of a "relationship" he or she had with a
co-worker who engaged in protected activity, but not because he or
she engaged in protected activity.
In Thompson, both petitioner Eric Thompson and his
fiancée, Miriam Regalado, worked for the respondent North
American Stainless ("NAS"). In February of 2003, Regalado
filed a charge of sex discrimination with the EEOC against NAS.
Three weeks later, NAS terminated Thompson's employment.
Thompson then filed an EEOC charge and after conciliation efforts
were unsuccessful, he filed suit against NAS in the United States
District Court for the Eastern District of Kentucky for Title VII
retaliation.
Thompson alleged that NAS fired him in order to retaliate against
his fiancée for filing her EEOC charge. The District Court
granted summary judgment in favor of NAS, concluding that Title VII
does not permit third party retaliation claims. On appeal, the
United States Court of Appeals for the Sixth Circuit reversed the
District Court. However, on rehearing en banc, the Sixth Circuit
then affirmed the District Court, finding that Thompson did not
engage in any statutorily protected activity under Title VII. The
Supreme Court then granted certiorari to determine whether
Thompson's termination constituted unlawful retaliation and
whether Title VII granted Thompson a cause of action.
Regarding the first issue, the Court found that Title VII
prohibited NAS from terminating Thompson. Relying on the
Court's previous decision in Burlington N. & S. F. R.
Co. v. White, 548 U.S. 53 (2006), the Court determined that
Title VII's anti-retaliation provision must be construed
broadly. The Court noted that Title VII's anti-retaliation
provisions are designed to prohibit employers from taking actions
that "might have dissuaded a reasonable worker from making or
supporting a charge of discrimination." Accordingly, the Court
found that a reasonable worker might be dissuaded from engaging in
a protected activity if her fiancé was going to be fired as
a result.
While the Court declined to identify a fixed class of relationships
that are protected from third party retaliation, the Court
indicated that "firing a close family member will almost
always meet the ... standard, and inflicting a milder reprisal upon
a mere acquaintance will almost never do so, but beyond that we are
reluctant to generalize." The Court stated that given the
variety of workplace contexts in which retaliation may occur, the
anti-retaliation provision cannot be reduced to a clear set of
rules.
The Court next considered the issue of whether Thompson could sue
NAS under Title VII even though, unlike his fiancée, he had
not engaged in protected activity. The Court rejected NAS's
argument that Thompson was not, in the words of Title VII, a
"person aggrieved" under that law. The Court concluded
that Thompson could bring a cause of action because he was within
the "zone of interests protected by Title VII" as he was
an employee of NAS. The Court found, "Thompson was an employee
of NAS, and the purpose of Title VII is to protect employees from
their employers' unlawful actions . . . Hurting him was the
unlawful act by which the employer punished her. In those
circumstances, we think Thompson well within the zone of interests
sought to be protected by Title VII."
There will likely be an increase in retaliation claims following
this decision. The difficulty for employers is that the Court
specifically declined to establish a rule defining this new third
party retaliation cause of action, and instead indicated that these
claims will be analyzed on a case-by-case basis. This case brings
light to another avenue of retaliation claims with which employers
need to be aware.
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.