The unanimous Supreme Court decision this week in Thompson v. North American Stainless, LP, has opened the door for third parties who have not engaged in protected activity under Title VII to file a claim of retaliation. Although the underlying facts of the case were simple, the same is not true regarding the effect of the Supreme Court’s decision on employers.
Thompson and his fiancé were both employed by North American Stainless (“NAS”). Three weeks after being notified that Thompson’s fiancé had filed a Charge with the EEOC, NAS fired Thompson. The district court granted NAS summary judgment, holding that Title VII did not allow third party retaliation claims, and an en banc 6th Circuit agreed, finding that Thompson did not engage in any statutorily protected activity. Upon granting certiorari, the Supreme Court noted that the case presented two questions:
- Did NAS’ termination of Thompson constitute retaliation?
- Does Title VII grant Thompson a cause of action?
The Court quickly resolved the first question finding that Thompson’s termination constituted retaliation relying on its prior decision in Burlington N & S.F.R. Co. v. White, 548 U.S. 53 (2006). Specifically, the Court found that it was “obvious” that a reasonable employee “might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.” Although the Court recognized NAS’ argument that this standard could place an employer at risk any time it fires an employee who has a connection to another employee who has filed a Charge, it found that this did not justify a categorical denial of third party retaliation claims. The Court refused to identify which third party relationships could support this type of claim, but did provide some guidance to employers. In dicta, the Court noted that the firing of a close family member would almost always meet the Burlington standard, and that a less severe reprisal inflicted on a mere acquaintance would almost never meet the Burlington standard.
The answer to the second question required more thought as the Court wrestled with whether Thompson was a “person claiming to be aggrieved” who could, thus, bring a civil action under Title VII. Ultimately, the Court determined that this language should not be so narrowly construed to only include the person who engaged in the protected activity. Instead, because Thompson fell “within the zone of interests” protected by Title VII (i.e., he was an employee of NAS and the purpose of Title VII is to protect employees from their employers’ unlawful actions), he qualified as a person “claiming to be aggrieved.” In fact, the Court recognized that Thompson was not an accidental victim of the retaliation—injuring him was NAS’ way of getting back at his fiancé who filed the Charge.
What does this decision mean for employers? Although the Supreme Court opened the door, it is not clear who can walk through and file a claim of retaliation. Which relationships between employees are sufficient to be within in the "zone of interest: husband and wife, fiancés, brothers and sisters, parents and children, nieces and nephews, cousins, best friends? Until district courts begin to interpret the Thompson decision, when taking an adverse employment action against an employee or applicant, an employer must not only consider whether the employee or applicant has filed a Charge or complaint, but also if another employee, who is closely related or connected to the employee or applicant in question, has filed a Charge or complaint.