Bringing clarity to the unsettled issue of associational retaliation, the United States Supreme Court held in Thompson v. North American Stainless, LP, 562 U.S. ___ (January 24, 2011), that taking adverse employment action against a person closely associated with an employee who has engaged in protected activity under Title VII of the Civil Rights Act of 1964 may violate the law’s anti-retaliation provision.
Both Petitioner Eric Thompson and his then-fiancée (now-wife), Miriam Regalado, worked for Respondent North American Stainless, LP (the “Company”). In September 2002, Regalado filed a charge with the EEOC, alleging that her supervisors discriminated against her based on her gender. In mid-February 2003, the Company was notified of Regalado’s EEOC charge. Slightly more than three weeks later, the Company terminated Thompson for “performance-based reasons.”
Thompson filed a charge with the EEOC and, following unsuccessful conciliation efforts, filed suit against the Company in the United States District Court for the Eastern District of Kentucky. In his suit, Thompson alleged that, in violation of Title VII, he was terminated in retaliation for his fiancée’s EEOC charge against the Company.
Under Title VII’s anti-retaliation provision, it is “an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment . . . because he has opposed any practice made an unlawful employment practice by [Title VII], or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under” Title VII. Of moment, Title VII permits “a person claiming to be aggrieved” to file a charge with the EEOC alleging the employer’s commission of an unlawful employment practice.
The District Court granted summary judgment in favor of the Company, holding that Thompson failed to state a claim under either of Title VII’s antidiscrimination and anti-retaliation provisions. In so holding, the District Court determined that Title VII did “not permit third party retaliation claims.”
Thompson appealed to the United States Court of Appeals for the Sixth Circuit. A 2-1 panel for the Sixth Circuit reversed the District Court’s ruling, holding that, although Title VII’s anti-retaliation provision does not expressly cover individuals who do not personally engage in protected activity, it nevertheless prohibits associational retaliation. To find otherwise, the panel found, would defeat the plain purpose of Title VII.
After granting a rehearing en banc, the Sixth Circuit vacated the majority panel’s decision. In so doing, the Sixth Circuit held that the anti-retaliation provision did not encompass “piggyback protection” for Thompson since he did not himself engage in protected activity under Title VII. Thompson appealed, leading the Supreme Court to grant certiorari.
Holding of the U.S. Supreme Court
In reversing the Sixth Circuit’s decision and remanding for further proceedings, the Supreme Court held that, if the alleged facts are true, Thompson’s termination violated Title VII’s antiretaliation provision.
The Supreme Court’s analysis of the issue boiled down to two questions: (1) Did the Company’s termination of Thompson’s employment constitute unlawful retaliation?; and (2) If so, did Title VII permit Thompson to bring a cause of action?
With respect to the first question, the Supreme Court answered in the affirmative. The Court cited to its earlier holding in Burlington N. & S.F.R. Co. v. White, 548 U.S. 53 (2006), that Title VII’s anti-retaliation provision covers “a broad range of employer conduct,” and reiterated its conclusion that the provision “prohibits any employer action that ‘well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.’” Accordingly, the Court thought “it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knows that her fiancé would be fired.”
In reaching its conclusion, the Court acknowledged, but ultimately rejected the Company’s argument that prohibiting third-party reprisals would lead to a slippery slope on the issue of how “associated” a third party must be to receive Title VII protection. Declining “to identify a fixed class of relationships,” the Court expressed that the termination of a close family member would “almost always” trigger protection, while the imposition of a “milder reprisal on a mere acquaintance will almost never do so.” However, the Court did not address the types of relationships that fall in between, and urged the use of an objective standard for determining harm to the third party.
As to the second question, the Court focused on the third party’s standing to bring a cause of action under Title VII. The Court determined that the phrase, “person aggrieved,” as used in Title VII should be construed more narrowly than the outer limits of Article III standing, which requires only that a litigant have an injury-in-fact that can be remediated by the court in order to sue. On the other hand, the Court found no justification for limiting Title VII standing to only those employees who engaged in protected activity under the statute. Ultimately, the Court determined that the appropriate test for whether a party may sue under Title VII is whether the party “falls within the ‘zone of interests’ sought to be protected by the statutory provision whose violation forms the legal basis for his complaint.”
Based on the facts alleged, the Court ruled that Thompson fell “within the zone of interests protected by Title VII.” Thompson was an employee of the Company, and Title VII serves to protect employees from unlawful employment actions. Further, Thompson was not “collateral damage”; the Company allegedly terminated him with the intent to punish Regalado for exercising her Title VII rights. Accordingly, Thompson was a “person aggrieved” who possessed standing to sue.
Concurring in the Court’s opinion, Justice Ginsburg, joined by Justice Breyer, noted that the Court’s opinion was consistent with the EEOC’s longestablished views on associational retaliation.
Though the EEOC has long interpreted Title VII and other antidiscrimination statutes to prohibit retaliation against persons closely associated with an individual exercising his or her statutory rights, Thompson settles an issue on which courts across the country have been split.
While Thompson establishes that associational retaliation claims have teeth, it does not provide clear parameters as to who may have standing to bring such a claim. Is a best friend or girlfriend, for instance, sufficiently similar to a fiancée to warrant Title VII protection? Thompson may open the floodgates for associational retaliation claims, and will require courts to engage in an extensive analysis of (i) the relationship between the third party and the employee who engaged in protected activity and (ii) whether the employer was aware of the relationship before making its decision to terminate or otherwise take an adverse employment action against the third party.
Despite the open question on the necessary degree of association, the takeaway of Thompson is clear: When an employer intends to punish an employee who asserts her antidiscrimination rights by taking an adverse employment action against those related to or associated with the employee, the employer bears a significant risk of violating civil rights laws.