On January 24, 2011, the Supreme Court unanimously ruled that Title VII’s prohibition on retaliation protects a broader class of employees than most lower courts — and many employers — realized.
The Court’s opinion, Thompson v. North American Stainless, involved the claims of a male employee whose employment was terminated three weeks after his fiancé — who worked for the same company — filed a charge with the EEOC alleging sex discrimination. He claimed that he was terminated in retaliation for his fiancé’s charge, and that his termination violated Title VII’s prohibition on retaliation. The lower courts that considered the case before the Supreme Court concluded, consistent with the approach followed in most states, that the male employee could not assert a retaliation claim because he was just a “third party” to his fiancé’s charge.
Emphasizing that Title VII prohibits “a broad range of employer conduct,” however, the Supreme Court reached the opposite conclusion. In doing so, the Court reiterated the now well-established test, first handed down in 2006, that Title VII prohibits any employer conduct that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Applying that standard, the Court found that because it was “obvious” that an employee would not file a charge if she knew her fiancé would be fired, the fiancé could sue the employer for retaliation even though he had not actually filed a charge himself.
But the Court acknowledged that not every case would be so obvious. “Perhaps retaliating against an employee by firing his fiancé would dissuade the employee from engaging in protected activity,” the Court wrote, “but what about firing an employee’s girlfriend, close friend or trusted co-worker?” Because these sorts of relationships are common in the workplace, the answer to this question is critical to how employers should approach employee terminations and discipline in wake of the Court’s ruling.
Nevertheless, the Court declined to provide employers with anything but the most generic answer to the question, noting only that “firing a close family member will almost always” qualify as unlawful retaliation under Title VII, while “inflicting a milder reprisal on a mere acquaintance will almost never do so.”
With nothing more than this broad generalization to follow, employers will have to wait for the lower courts to sort out the Supreme Court’s ruling to obtain more definite guidance on the scope the rule. Unfortunately, that process will take years. Until then, when disciplining or preparing to terminate an employee whose close relative has filed a charge, employers should use the same degree of caution they would use when taking action against an employee who had actually filed a charge. Employers should exercise similar caution when taking action against an employee who is a friend or confidant of an employee who filed a charge, as the stronger the relationship between the two employees, the more likely it is that an employee can assert a third party retaliation claim under the Supreme Court’s test.
This decision represents the second major employment-related Supreme Court case in less than a week. To learn more about the Supreme Court’s other major employment case, which involved employee background checks, click here. The attorneys in Baker & Daniels’ labor and employment group will continue to keep you up to speed on all of the latest employment law developments at the Supreme Court.