On January 24, 2011, the U.S. Supreme Court issued a unanimous decision in Thompson v. North American Stainless, LP, expanding upon the Court’s 2006 ruling in Burlington N. & S. F. R. Co. v. White. In White, the Court held that the anti-retaliation provision in Title VII of the Civil Rights Act of 1964 (Title VII) prohibits actions that would dissuade a reasonable worker from making or supporting a charge. In Thompson, the Court ruled that a retaliation claim may be brought by an individual who did not actually engage in protected activity if the adverse action sought to dissuade someone else from engaging in protected activity.
Factual Background And Procedural History
Plaintiff Eric Thompson and his fiancée, Miriam Regalado, had been employed by defendant North American Stainless (NAS). In February 2003, Regalado filed an EEOC charge against NAS alleging sex discrimination. Three weeks later, NAS discharged Thompson. Thompson claimed that he was discharged in an effort to retaliate against Regalado because she filed her sex discrimination charge.
The U.S. District Court for the Eastern District of Kentucky granted NAS’ motion for summary judgment, concluding that Title VII “does not permit third party retaliation claims.” The full Sixth Circuit affirmed, reasoning that because Thompson did not “engage[e] in any statutorily protected activity, either on his own behalf or on behalf of Miriam Regalado,” he “is not included in the class of persons for whom Congress created a retaliation cause of action.”
The Supreme Court’s Analysis
The Supreme Court reversed the Sixth Circuit’s ruling. In doing so, the Court considered and answered “yes” to the following two issues: (1) whether NAS’s firing of Thompson constitutes unlawful retaliation; and (2) if so, whether Title VII granted Thompson a cause of action.
Regarding the first issue, the Court followed its 2006 decision in White, which broadened the range of conduct prohibited by Title VII’s anti-retaliation provisions. Because the Court thought 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 held that Thompson’s firing for the reason alleged was unlawful retaliation.
Regarding the second issue (and what it characterized as the “more difficult” question), the Court fashioned a “zone of interests” test, enabling suit by a plaintiff with an interest “arguably [sought] to be protected by the statute,” unless those interests are unrelated to Title VII’s prohibitions. The Court found that Thompson was a person aggrieved because he fell within the zone of interests protected by Title VII -- he was an employee of NAS, Title VII’s purpose is to protect employees from their employers’ unlawful actions, and harming (firing) Thompson was the unlawful act by which NAS allegedly punished Regalado.
Implications Of This Decision
Two weeks ago, the EEOC announced that 99,922 discrimination charges, the most ever, were filed against private sector employers in the fiscal year ending September 30, 2010. Retaliation was alleged in 36 percent of charges, more than any other type of claim, and the number of retaliation claims also was the highest ever. With today’s decision in Thompson, we can expect that number to increase further.
In the past, many employers have assumed that an individual must engage in protected conduct -- e.g., filing a charge of discrimination or opposing allegedly discriminatory practices -- to sustain a retaliation claim as a matter of law. But, in determining that Thompson stated a valid claim, the Court today effectively and expansively ruled that an individual may bring a Title VII retaliation claim if he or she had an interest arguably sought to be protected by Title VII -- even if the individual did not engage in protected activity. Moreover, although the Court stated that the standard for judging retaliation “must be objective,” the Court also indicated that each case will turn on its own “particular circumstances,” which poses a risk of further limiting the potential for summary judgment in retaliation cases.
The Court’s ruling in Thompson underscores that virtually anyone can fall into one or more protected classifications for purposes of the anti-discrimination laws. As a result, it is now more important than ever that employers follow proper procedures and conduct thorough investigations before taking adverse employment actions.