Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating on the basis of race, color, religion, sex, or national origin and from retaliating against employees because they have opposed an unlawful practice under Title VII or participated in an investigation or proceeding under Title VII. The U.S. Supreme Court has addressed the antiretaliation provisions of Title VII on several occasions within the last decade, broadly construing the scope of protected employee activity and the types of employer actions that may constitute unlawful retaliation. On January 24, 2011, the Supreme Court again broadly interpreted the scope of Title VII’s antiretaliation provisions. In an 8-0 decision (Justice Kagan took no part in the consideration or decision of the case), the Supreme Court in Thompson v. North American Stainless, LP held that the victim of an adverse employment action implemented to retaliate against another employee for engaging in protected activity may, in some circumstances, bring a Title VII retaliation claim against the employer, even though the victim had not himself engaged in any activity protected by Title VII.
The Supreme Court’s Ruling in Thompson v. North American Stainless, LP
In Thompson, Eric Thompson, and his fiancée, Miriam Regalado, were both employed by North American Stainless, LP (“NAS”). Regalado filed a sex discrimination charge against NAS with the Equal Employment Opportunity Commission (“EEOC”), an act protected by Title VII. Three weeks after learning of the charge, NAS terminated Thompson’s employment. Thompson subsequently sued NAS under Title VII, claiming that NAS fired him in order to retaliate against Regalado for filing her charge with the EEOC. After two lower courts ruled that Thompson had no claim under Title VII, the case came before the Supreme Court.
The Court, assuming in the posture of this case the truth of Thompson's allegations, addressed two separate questions: Did NAS’s firing of Thompson in response to Regalado’s charge constitute unlawful retaliation under Title VII, and if so, did Title VII grant Thompson a cause of action? With regard to the first question, the court had little difficulty finding that NAS’s firing of Thompson constituted unlawful retaliation under Title VII. The Court, which had previously ruled in 2006 that the purpose of Title VII’s antiretaliation provision was to prohibit employer action that would dissuade a reasonable worker from engaging in activity protected by that law, concluded that a reasonable worker would be dissuaded from engaging in protected activity if she knew that her fiancé would be fired as a result. Thus, firing Thompson was a retaliatory act taken by NAS against Regalado for filing a charge. NAS argued that prohibiting reprisal against third parties would put employers at risk any time they disciplined an employee who happened to have a connection to another employee who had filed a charge of discrimination. The Court recognized that risk but declined to create a categorical rule to identify the particular types of connections or relationships that would trigger unlawful retaliation when retaliatory adverse employment actions are taken against a third party rather than against the employee who engaged in activity protected by Title VII. Instead, the Court declared that in determining whether an adverse action taken against a third party would dissuade a reasonable worker from engaging in activity protected by Title VII, the significance of any given act of retaliation would depend on the particular circumstances of the case. The Court observed that terminating the employment of a close family member will almost always qualify as unlawful retaliatory conduct, while imposing discipline of lesser severity on a “mere acquaintance” will almost never do so. Beyond those examples, the Court was reluctant to generalize.
The more difficult question concerned whether Thompson was entitled to sue NAS for its alleged violation of Title VII. Title VII authorizes a “person claiming to be aggrieved” to file a civil lawsuit challenging an unlawful practice under that law. NAS argued that, in the retaliation context, the only employee aggrieved is the employee who is retaliated against for engaging in activity protected by Title VII. In this case, that would be Regalado, not Thompson. The Supreme Court disagreed with this analysis, holding instead that a “person aggrieved” under Title VII is any person who suffers an adverse employment action and who falls within the “zone of interests” that Title VII was intended to protect. Applying that test to NAS’s actions, the Court held that because the purpose of Title VII is to protect employees from their employers’ unlawful actions and discharging Thompson was the unlawful action by which the employer retaliated against Regalado, Thompson was within the “zone of interests” sought to be protected by Title VII and could sue NAS under that law.
With its decision in Thompson, the Supreme Court has now recognized the validity of so-called “third party” retaliation claims. Traditionally, Title VII retaliation claims have arisen when an employer took an adverse action against an employee who had filed an EEOC charge or engaged in other activity protected by Title VII. Prior to the Court’s decision in Thompson, employers were generally aware that the process of disciplining or taking other adverse action against such an employee should be conducted with caution in order to ensure that the adverse action was legitimate, nondiscriminatory, and unrelated to the protected activity. After Thompson, employers now face an additional layer of analysis when taking adverse employment actions affecting employees who, though not engaging in any protected activity themselves, nevertheless have a close relationship to an employee who has. Relatives and close friends of an employee who has recently engaged in protected activity under Title VII should, in particular, be considered as being in a protected category, and employers should exercise the same care in reaching employment decisions adversely affecting them that the employer would give to decisions adversely affecting employees who have engaged in protected activity. To minimize the risks associated with retaliation claims, employers should use their best efforts to document legitimate and nonretaliatory reasons for any adverse employment action taken with respect to these employees.