Yesterday, the U.S. Supreme Court ruled that an employee allegedly fired in retaliation for a a sex discrimination charge filed by his fiancée could sue his employer under Title VII of the Civil Rights Act of 1964. Because the Court's reasoning could arguably be extended to retaliation claims under the FMLA, covered employers should take note. Thompson v. North American Stainless (.pdf).
Eric Thompson and his fiancée, Miriam Regalado, both worked for North American Stainless ("NAS"). In February 2003, the EEOC notified NAS that Regalado had filed a charge alleging sex discrimination. NAS fired Thompson three weeks later. Thompson then filed his own EEOC charge and later filed suit in U.S. District Court, alleging that NAS had fired him in order to retaliate against Regalado for filing her charge with the EEOC. The District Court dismissed the case, holding that "Title VII does not permit third-party retaliation claims." Thompson appealed. A three-judge panel of the Sixth Circuit Court of Appeals reversed the District Court, but after rehearing the full court voted to affirm the District Court's ruling by a vote of 10 to 6. The majority reasoned that Thompson could not sue for retaliation because he did not engage in any activity protected by Title VII. Thompson then appealed to the Supreme Court.
In an 8-0 decision (Justice Kagan did not participate), the Supreme Court reversed the Sixth Circuit's ruling. In an opinion by Justice Scalia, the Court observed that Title VII's anti-retaliation provision is broader than the statute's substantive anti-discrimination provisions. Title VII prohibits discrimination on the basis of race, color, religion, sex, and national origin "with respect to ... compensation, terms, conditions, or privileges of employment" and discriminatory practices that would "deprive any individual of employment opportunities or otherwise adversely affect his status as an employee." In contrast, the anti-retaliation provision prohibits an employer from "discriminating against any of his employees" for engaging in protected conduct, without further specifying what acts are prohibited.
Citing the Court's 2006 ruling in Burlington Northern & S.F. R.Co. v. White, the Court noted that this language prohibits employers from taking any action that "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Applying this logic to Thompson's case, the Court found it "obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancée would be fired."
While the Court acknowledged that its ruling could expose employers to claims any time they fire an employee who has some connection to another employee who complained of discrimination, it provided almost no guidance as to the sorts of relationships could give rise to a third-party reprisal claim:
“We expect that firing a close family member will almost always meet the Burlington standard, and inflicting amilder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize. As we explained in Burlington, 548 U. S., at 69, “the significance of any given act of retaliation will often depend upon the particular circumstances.” Given the broad statutorytext and the variety of workplace contexts in which retaliation may occur, Title VII’s antiretaliation provision is simply not reducible to a comprehensive set of clear rules.
Retaliation Under the FMLA
The FMLA makes it unlawful for any employer to "interfere with, restrain, or deny the exercise of or the attempt to exercise" any right under the FMLA, or to" discharge or in any other manner discriminate against any individual for opposing" any violation of the FMLA. In light of this language, it seems likely that plaintiffs' attorneys and the Department of Labor will seek to apply the Court's logic in Thompson to third-party reprisal claims under the FMLA.
What does this mean for employers? When deciding whether to terminate or take other adverse action against an employee, it may not be enough to consider whether that employee has recently exercised FMLA rights or engaged in other activities protected by state or federal law. Now, the employer must consider whether the employee has some significant connection to any other employee who engaged in such protected activities. For example, is the employee married to, dating, or good friends with another employee who recently requested FMLA leave or filed a DOL complaint? If so, additional caution may be warranted.