ALERT - Supreme Court Allows Third Party Retaliation Claims Under Title VII

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February 10, 2010

The United States Supreme Court held in an opinion filed last week that an employee discharged in response to a charge of discrimination filed by his co-worker fiancée may pursue a retaliation claim under Title VII. Thompson v. North American Stainless, LP, No. 09-291, 562 U.S. ___ (2011). This decision will certainly increase the already growing field of retaliation charges. Indeed, out of the nearly 100,000 charges of discrimination filed with the Equal Employment Opportunity Commission last year, 36,000 already contained an allegation of retaliation. Given the Court’s determination in Thompson, employers will now face potential retaliation charges not only from an individual who complains of discrimination, but also from his or her family, friends and possibly other co-workers as well.

The plaintiff in the case, Eric Thompson and his fiancée Miriam Regalado, both worked for North American Stainless, LP (“NAS”), an integrated stainless steel mill located in north Kentucky. In 2003, Regalado, one of the few female engineers for NAS, filed a charge of discrimination with the EEOC alleging gender-based discrimination. Thompson, who was also an engineer, allegedly helped her with the charge filing process. Three weeks after Regalado’s charge was filed, NAS terminated Thompson allegedly because of poor job performance. Thompson then filed a retaliation claim with the EEOC against NAS. After failed mediation, the employer prevailed in both the District Court and eventually at the Sixth Circuit Court of Appeals arguing that Thompson lacked a cause of action under Title VII. The Supreme Court, however, reversed and held that Thompson was protected by the anti-retaliation provisions of Title VII and that he had standing to bring suit based upon his fiancée’s charge of discrimination.

In a unanimous opinion, the Supreme Court addressed two issues under Title VII: (1) whether it is unlawful retaliation to terminate, as a reprisal, an individual closely associated with a person who files a charge of discrimination and (2) whether the terminated individual can bring a claim of retaliation. The court answered both questions in the affirmative.

Writing for the court, Justice Antonin Scalia rejected NAS’s argument that only the individual who complained of discriminatory conduct is protected from retaliation. Instead, with reference to the Court’s prior opinion in Burlington N. & S.F.R. Co. v. White, 548 U.S. 53 (2006), Justice Scalia made it clear that Title VII does not permit retaliation against any of an employer’s employees, stating, “[w]e think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.”

Justice Scalia declined, however, to establish any bright-line rules regarding when a third-party action would constitute retaliation. 

"We must also decline to identify a fixed class of relationships for which third-party reprisals are unlawful. We expect that firing a close family member will almost always meet the Burlington standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize."
 
As to the second issue, NAS argued that the retaliation provision of Title VII created a cause of action for only the employee who engaged in the protected activity. Justice Scalia disagreed, and defined the scope of individuals protected by Title VII to include “any plaintiff with an interest arguably [sought] to be protected by [Title VII].” This holding maintained consistency with the “zone of interests” standard established in related decisions over the past twenty years.   

In response to Thompson, employers should develop heightened awareness of possible retaliation claims. For example, if an employer terminates a family member or close friend of an employee who has complained of discrimination, both the family member or friend, and the complaining employee now may assert a cause of action. Accordingly, employers should carefully review such discharge decisions to ensure they are made without retaliatory motivation. To properly defend themselves against any such allegations, employers should also take steps to ensure that these termination decisions are well documented.   

For more information, contact your Briggs and Morgan attorney or a member of the Employment, Benefits, and Labor Practice Group.