In Thompson v. North American Stainless, LP, No. 09-291 (U.S. Jan. 24, 2011), the U.S. Supreme Court recently decided that Title VII supports so-called third-party retaliation claims, when an employer retaliates against - not the person who engaged in protected activity - but a third party. In Thompson, an employee and his fiancé both worked for the same employer. He was fired shortly after the employer learned that the employee's fiancé had filed a sex discrimination charge against the company. The discharged employee pursued a retaliation claim. Lower courts rejected the claim, as a matter of law, because the discharged employee was not the same person as the one who engaged in protected activity. Those courts reasoned that the anti-retaliation section of Title VII, by its very terms, prohibits discrimination against an employee or applicant "because he has made a charge [or engaged in other protected activity]," 42 U. S. C. §2000e-3(a), not because another person filed a charge or engaged in other protected activity. Notwithstanding this statutory language, the Supreme Court reversed, recognizing the legitimacy of this type of claim.

The Supreme Court in Thompson reasoned that the scope of employer conduct covered by Title VII's anti-retaliation provisions is broader than the scope of employer conduct covered by Title VII's anti-discrimination provisions. For example, Title VII's anti-retaliation provisions are not limited to actions that affect the terms and conditions of employment, whereas the anti-discrimination provisions are so limited. Applying Burlington Northern v. White, 548 U.S. 53 (2006), where the Court redefined "adverse action" in a Title VII retaliation case, the Court described the standard in the retaliation context as whether the employer's action "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination [or engaging in other protected action]." See "The Trivialization of Retaliation Law Continues . . ."

Viewing the facts in favor of the plaintiff, as it was required to do, the Supreme Court found it "obvious" that a reasonable worker would be dissuaded from engaging in protected activity if she knew her fiancé would be fired as a result. The Court did not distinguish between lawful and unlawful third-party reprisals. However, the Court explained that "firing a close family member" likely would constitute retaliation, while "inflicting a milder reprisal on a mere acquaintance" would most certainly not. Courts are to look objectively at the particular circumstances of a case.

But even if the employer's discharge of the plaintiff Thompson may have been retaliatory as to the fiancé who had filed a sex discrimination charge, could the plaintiff legitimately pursue a retaliation claim when he had not engaged in protected activity before being fired? The Court held that the plaintiff in Thompson did have standing to sue under Title VII because he was within the "zone of interests" sought to be protected by the statute. That is, he was not an accidental victim of the retaliation.

The outcome in Thompson may be good policy and is not completely unexpected. However, it is not consistent with the language of Title VII. Moreover, the model for proving a basic retaliation case may not be appropriate for third-party retaliation cases. For instance, there is a large body of case law providing that a plaintiff can prove there was a causal nexus between his/her protected activity and subsequent retaliatory actions against the plaintiff, merely with evidence of a brief time interval between the two. However, a brief time interval between an employee's protected activity and later adverse action taken against someone else may not be sufficient to prove the causal nexus in third-party retaliation cases.

Thompson illustrates the broad reach of Title VII's retaliation provisions. The decision opens the possibility that non-workplace actions affecting third parties may well be considered "adverse acts" for purposes of a Title VII retaliation claim. Employers on notice of protected activity are well-advised to consider the wider effects of their business (and non-business) decisions and to document the business justifications for such decisions.