On 24 January 2011 the U.S. Supreme Court unanimously held in Thompson v. North American Stainless, LP (No. 09-291), that an employee allegedly discharged because his fiancée filed a charge of sex discrimination against their mutual employer has a cause of action against the employer for retaliation under Title VII of the Civil Rights Act of 1964.
Petitioner Eric Thompson and his fiancée Miriam Regaldo were employees of Respondent North American Stainless (NAS). In February 2003, Regaldo filed a charge of sex discrimination against NAS with the EEOC. NAS fired Thompson three weeks later. Thompson then filed his own charge with the EEOC claiming that NAS terminated his employment as retaliation against Regaldo for her charge.
The U.S. District Court for the Eastern District of Kentucky granted summary judgment in favor of NAS, concluding that Title VII did not permit third-party retaliation claims. The U.S. Court of Appeals for the Sixth Circuit affirmed, reasoning that while Regaldo might have a claim for retaliation based on Thompson's termination, Thompson himself could not bring a retaliation claim because he did not engage in any protected activity.
In an 8-0 decision written by Justice Scalia (Justice Kagan was recused), the Supreme Court reversed, holding that Thompson did have standing to bring a claim for retaliation under Title VII. In so holding, the Court addressed two questions: (1) did Thompson's termination constitute unlawful retaliation; and (2) if yes, did Thompson have a cause of action under Title VII?
The Court dispensed with the first question quickly, stating "we have little difficulty concluding that if the facts alleged by Thompson are true, then NAS's firing of Thompson violated Title VII." Five years ago, in Burlington N. & S. F. R. Co. v. White, the Court held that Title VII's anti-retaliation provision prohibits any employer action that might dissuade a reasonable employee from making or supporting a charge of discrimination. Under that standard, the Court held, there is no dispute that an employee might be dissuaded from filing a charge of discrimination if she knew that her employer might respond by terminating her fiancé.
The Court acknowledged NAS's argument that an employer would be at risk any time it fired an employee who happened to have a connection to another employee who filed an EEOC charge, but it declined to identify any fixed class of relationships for which third-party reprisals are unlawful. The Court did note that firing a close family member will almost always meet the Burlington Northern standard and that a milder reprisal toward a mere acquaintance will almost never do so. Beyond that, the significance of any alleged act of retaliation will depend on the particular circumstances.
Turning to what it considered the more difficult question, the Court held that Thompson had standing to sue his employer for its alleged violation of Title VII because he is a "person aggrieved" within the meaning of the statute. Under Title VII, "a civil action may be brought . . . by the person claiming to be aggrieved." 42 U.S.C. §2000e-5(f)(1). The Court held that "person aggrieved" must be construed more narrowly than the outer boundaries of Article III standing under the U.S. Constitution, but it should not be limited to only those employees who engage in protected activity themselves. The Court held that the proper construction was between these two extremes: an individual is a "person aggrieved" for purposes of Title VII if he falls within the "zone of interests" protected by Title VII.
In this case, Thompson fell well within Title VII's zone of interest because he was NAS's employee, and Title VII's purpose is to protect employees from the unlawful actions of their employers. Moreover, the Court held, Thompson was not an accidental victim of retaliation. Accepting the facts as alleged, NAS deliberately targeted Thompson in order to punish Regaldo for filing her charge of sex discrimination.
The Court's refusal to specify which relationships are sufficient to sustain a third-party retaliation claim and its adoption of the "zone of interests" standard to determine who may bring a claim may cause a significant increase in new retaliation claims under Title VII. Although any plaintiff still will have to prove causation, employers now may be held liable for actions taken against an employee who simply has a relationship with another employee who engaged in protected activity. In the wake of this decision, employers should ensure they have robust anti-discrimination and anti-retaliation policies in place. And before terminating an employee, employers should analyze, to the extent practicable, whether that employee has a relationship with any other employee who has engaged in protected activity under Title VII.