In Thompson v. North American Stainless, LP, 09-291 (Jan. 24, 2011), the U.S. Supreme Court ruled that an employee fired only weeks after his fiancée filed a charge of discrimination against their joint employer could sue for retaliation under Title VII of the Civil Rights Act of 1964 – even though he did not engage in any protected activity. The Court ruled that Title VII’s anti-retaliation provision allows anyone with an interest “arguably sought to be protected by Title VII” to sue.
The decision allows a potentially wide, but undefined, range of employees who have never engaged in protected activity to sue for retaliation.
Facts and Procedural Background
Eric Thompson and Miriam Regalado were both employees of North American Stainless (NAS). In September 2002, Ms. Regalado filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging that her supervisors discriminated against her based on her gender. On February 13, 2003, the EEOC notified NAS of Ms. Regalado’s charge. Approximately three weeks later, on March 7, 2003, NAS terminated Thompson’s employment. NAS supervisors knew that Thompson was engaged to Regalado.
Thompson sued NAS, claiming that he was terminated in retaliation for his fiancée’s EEOC charge. NAS contended that performance-based reasons supported Thompson’s termination.
On June 5, 2009, a divided panel of the U.S. Court of Appeals for the Sixth Circuit ruled that “under its plain language,” Title VII “does not authorize a retaliation claim by a plaintiff who did not himself engage in protected activity.”
The Court’s Disagreement with the Sixth Circuit
On January 24, 2011, the Supreme Court reversed the Sixth Circuit’s decision. Writing for a unanimous Court, Justice Antonin Scalia said that there were two issues: “First, did NAS’s firing of Thompson constitute unlawful retaliation? And, second, if it did, does Title VII grant Thompson as cause of action?”
As to the first question, the Court concluded that if the facts Mr. Thompson alleged were true, his firing by NAS constituted unlawful retaliation. Title VII’s anti-retaliation provision makes unlawful any retaliatory action that might have “dissuaded a reasonable worker from making or supporting a [discrimination] charge.” A reasonable worker obviously might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired, the Court concluded.
In addressing the second question – who can actually sue and recover for the alleged retaliatory behavior – the Court noted that Title VII provides that “a civil action may be brought ... by the person claiming to be aggrieved.” The Court rejected NAS’s argument that only the person who engaged in the protected conduct is an “aggrieved person” eligible to sue for retaliation and that third-party retaliation claims are not allowed. It concluded that an individual is “aggrieved,” and can sue for retaliation, if he or she is within the “zone of interests” protected by Title VII.
The Court found that Mr. Thompson fell within the “zone of interests” protected by Title VII because: (1) Mr. Thompson was an employee of NAS, and the purpose of Title VII is to protect employees from their employer’s unlawful actions; and (2) accepting Mr. Thompson’s allegations as true, his termination was an attempt to punish Ms. Regalado for filing her charge of discrimination. As Justice Scalia put it, “Thompson is not an accidental victim of the retaliation – collateral damage, so to speak, of their employer’s unlawful actions.” He thus could sue for retaliation.
Significance of the Case
Retaliation is now the most frequently filed charge with the EEOC. The Thompson ruling is likely to increase the number of retaliation claims as employees (and their lawyers) assert the kinds of third-party retaliation claims the Supreme Court has said are now available.
Unfortunately, while opening the door to third-party retaliation claims, the Court did not clearly define the class of employees who will be allowed to sue based on a claim that they suffered retaliation for another’s protected conduct. Specifically, the Court declined “to identify a fixed class of relationships for which third-party reprisals are unlawful.” This stemmed from the Burlington standard – that an action is unlawfully retaliatory if it would likely deter a reasonable employee from filing a discrimination charge or engaging in protected activity. That standard itself does not allow for a bright line determining whether actions are retaliatory. All the Court was willing to say is that “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.”
It remains to be seen what limits lower courts will put on the “third-party-retaliation genie” the Supreme Court has let out of the bottle. We will continue to report on developments in the lower courts in this critical and emerging area. In the meantime, employers would do well to take the following steps:
- Reviewing retaliation policies. Employers should make sure that the language in their non-retaliation policies is broad enough to state that the employer prohibits retaliation for the protected activity by one employee carried out through adverse action against another employee.
- Train managers/supervisors about third-party retaliation. Even if your managers have been trained that the law prohibits retaliation against an employee who has filed an EEOC discrimination charge or made an internal discrimination complaint, managers need to understand that the retaliation prohibition is not limited to the employee who made the charge or complaint. Given the uncertain scope of the Thompson decision, managers and supervisors must understand that complaints about discrimination, discrimination charges or other protected activity may not be used as a basis for retaliating against any employee.
- Review policies relating to familial and/or romantic relationships within the same work unit, location or company. If the Thompson decision makes anything clear, it is that the greatest risk of third-party retaliation liability occurs when family members or romantically involved employees work closely together. Employers are well advised to review their policies regarding employment of family members and romantic relationships in the workplace and ensure that they are being enforced and applied consistently.