In Thompson v. North American Stainless, LP, a decision that expands the scope of retaliation claims under Title VII, the U.S. Supreme Court held unanimously that "third-party" retaliation against someone "closely related to or associated with" an employee who has engaged in protected activity is actionable.

At issue in the case was plaintiff Eric Thompson's termination from employment three weeks after his fiancée and co-worker filed a sex discrimination charge with the U.S. Equal Employment Opportunity Commission ("EEOC"). Although the employer asserted that Thompson was terminated for poor performance, Thompson alleged that his termination was motivated by his fiancée's filing of the EEOC charge and thus constituted unlawful retaliation under Title VII. After his lawsuit was dismissed and the dismissal was affirmed on appeal, Thompson brought his case to the Supreme Court.

Writing for the unanimous Court, Justice Scalia reversed the lower courts, holding that Thompson had stated a claim under Title VII. The Supreme Court found that the broad anti-retaliation provision of Title VII, which prohibits retaliation against any aggrieved person "because he has opposed any practice made an unlawful employment practice ... or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing" was broad enough to cover retaliation against someone "closely associated" with the person who has engaged in protected activity. Noting that Title VII's anti-retaliation provision prohibits any employer action that "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination," the Court stated:  

"We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired."  

The Court declined, however, to identify the class of persons who may be protected from third-party retaliation. As Justice Scalia noted, "We expect that firing a close family member will almost always" meet the standard for retaliation under Title VII, while "inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize ... the significance of any given act of retaliation will often depend upon the particular circumstances."

ASK MS&K - Q&A Section:

Q: Would Thompson's fiancée, who filed the EEOC charge, also be able to assert a retaliation claim based on Thompson's termination?

A: Although that issue was not before the Court, it appears that the answer is "yes." While the Court noted that "injuring [Thompson] was the employer's intended means of harming" his fiancée, this issue was not before the Court. Nonetheless, as noted by concurring Justices Ginsburg and Breyer, the EEOC has long taken the position that, in these circumstances, retaliation can be asserted "by both the individual who engaged in protected activity and the relative, where both are employees."

Q: What practical lessons can be learned from Thompson?

A: Employers must carefully scrutinize all of the facts and circumstances before taking adverse action against any employee. For example, before terminating an employee, the employer should consider whether he or she is "closely related" to another employee who has recently engaged in protected activity. While a claimant cannot prevail unless a causal link can be proven between the protected activity (e.g., the fiancée's EEOC charge) and the adverse act (here, Thompson's termination), the employer should ensure that it has a well-documented reason, consistent with how it has treated similarly situated employees, before carrying out the termination.