In 2010 retaliation became the most frequent type of charge received by the Equal Employment Opportunity Commission (EEOC). In the wake of the Supreme Court's ruling in Thompson v North American Stainless, LP,(1) this trend is likely to continue, particularly due to the fact that the court refrained from answering the most difficult question implicated in third-party retaliation claims.

The court decided that:

  • Title VII prevented an employer from retaliating against an employee due to the employee's association with an individual who participated in protected activity; and
  • the third-party employee had a cause of action for retaliation under Title VII, despite the fact that the individual did not actually participate in the protected activity.

These determinations were hardly groundbreaking; indeed, the EEOC Compliance Manual asserts the same principles.

But the most difficult question of all – "what type of relationship gives rise to prohibited third-party retaliation?" – was barely addressed by the court. Justice Scalia described the court's conclusions in this case as "obvious" because Thompson was the fiancé of a complaining employee, and he alleged that he was terminated due to this relationship. The court specifically stated that it would not "identify a fixed class of relationships for which third-party reprisals are unlawful". Nonetheless, Scalia opined that terminating a close family member will almost always meet the standard, while a mild action against an acquaintance "will almost never do so". As a result, in analysing future cases, the courts will evaluate the nature of the third-party's relationship with the complaining employee and the severity of the employer's action.

This ruling provides yet another reason why employers should have well-documented, consistent and well-reasoned grounds for taking disciplinary action against employees, especially employees in relationships with complaining employees. When a complaining employee has a co-worker who is a sibling, close friend or significant other, some employers worry that the third-party employee will act as a mole in the complaining employee's discrimination case. Rather than terminate the third-party employee, employers should closely guard information that they want to keep confidential.

The district courts are expected to begin laying out the standards necessary to assert a prima facie case for third-party retaliation. In the meantime, employers should carefully consider actions taken against a third-party employee when they know that the employee has a relationship with a complaining employee.

For further information on this topic please contact Kevin B Leblang or Robert N Holtzman at Kramer Levin Naftalis & Frankel LLP by telephone (+1 212 715 9100), fax (+1 212 715 8000) or email ([email protected] or [email protected]).


(1) 131 S Ct 863 (2011).