Here we go again! Consistent with its retaliation decisions over the past five years, the United States Supreme Court has revisited and expanded the scope of protection from retaliation under Title VII. In an 8-0 decision issued January 24, 2011, the high court expanded the scope of Title VII’s anti-retaliation provision by concluding that in certain situations, the statute allows an employee who has not personally engaged in protected activity to lodge a retaliation claim under the statute. Thompson v. N. Am. Stainless LP, U.S., No. 09-291, 1/24/11, reverses several lower court holdings that Title VII only prohibits retaliation against employees who have actually opposed an unlawful employment practice or assisted in an investigation.
Plaintiff Eric Thompson alleged that his fiancée’s gender discrimination charge filed with the EEOC led their mutual employer, North American Stainless, to fire him. Thompson sued the Company, insisting that his employment termination was an act of unlawful retaliation against him because his fiancée had filed a sex discrimination charge immediately before his discharge. The Sixth Circuit rejected Thompson’s claim, holding that because Title VII only protects employees who personally oppose an unlawful employment practice or assist in an investigation, Thompson lacked standing to sue. The Supreme Court reversed, concluding that (1) Thompson’s termination violated Title VII; and (2) Title VII grants Thompson the right to sue.
Although the Court declined to establish fixed classes of relationships for which third-party retaliation claims may be actionable, its holding that a third party’s claim may fall “within the zone of interests protected by Title VII” significantly expands the scope of the statute’s retaliation provision. In light of this ruling, employers must now consider whether an adverse employment action will leave them vulnerable to third-party retaliation claims.
Court’s Ruling Offers Minimal Guidance for Employers
The Court first examined whether Thompson’s firing violated Title VII’s anti-retaliation provision. Relying upon its 2006 landmark retaliation decision in Burlington Northern & Santa Fe R. Co., v. White, 548 U.S. 53, in which the Court expanded the definition of prohibited retaliation to include, “any employer action that ‘well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.’” Noting that it is “obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew her fiancé would be fired,” the Court held that the Company had unlawfully retaliated against Thompson’s fiancée by firing Thompson.
The Court, however, refused to articulate a meaningful rule regarding third-party reprisals. The Court reasoned that retaliatory firing of a close family member will almost always violate Title VII, while taking lesser retaliatory action against an acquaintance almost never will, but declined to provide any further guidelines. Rather, in a move certain to invite further litigation, the Court emphasized that third-party retaliation claims will depend on the surrounding circumstances because “Title VII’s anti-retaliation provision is simply not reducible to a comprehensive set of rules.”
Third Parties may Sue under Title VII
Thompson’s second holding is potentially as significant as the first. The Court applied a “zone of interest” test to Title VII for the first time, rejecting the employer’s argument that only employees who engaged in protected activity may sue under the statute for retaliation. Rather, the Court explained, because “injuring [Thompson] was the employer’s intended means of harming [his fiancée],” Thompson fell within the “zone of interests” protected by Title VII, and could therefore sue the Company.
The Court’s ruling in Thompson requires employers to prepare for increased Title VII retaliation claims from a new class of third-party plaintiffs, but it provides minimal guidance on what degree of action and what level of relationship will create potential liability. Employers must recognize the added risk of taking some action that may not only be viewed as retaliating against an employee engaging in protected activity, but also against others in some undefined level of relationship with that person. Employers should also continue to monitor Title VII developments as lower courts begin to apply and analyze Title VII’s expanding anti-retaliation provision.