On Monday, January 24, 2011, the United States Supreme Court (the “Court”) reversed an en banc 10-to-6 decision of the Sixth Circuit Court of Appeals that held that because a third-party did not “engage in any statutorily protected activity either on his own behalf or on behalf of his fiancée, he was “not included in the class of persons for whom Congress created a retaliation cause of action.” In reversing the appellate decision, the Court found that the third-party petitioner was within the “zone of interests” protected by Title VII giving him standing to sue under Title VII. (Thompson v. North American Stainless, LP, (562 U.S. _____ (2011)).
Eric Thompson and his fiancée, Miriam Regalado, both worked for North American Stainless LP (“NAS”). In February 2003, the U.S. Equal Employment Opportunity Commission (“EEOC”) notified NAS that Ms. Regalado had filed a sex discrimination charge against it. Three weeks later, NAS fired Thompson. In response to his firing, Thompson filed a charge of retaliation under Title VII of the Civil Rights Act of 1964, and alleging that NAS fired him in retaliation for his fiancée filing her sex discrimination charge with the EEOC. Having granted certiorari, the Supreme Court considered two questions: (1) Did NAS’s firing of Thompson constitute unlawful retaliation? (2) And if so, does Title VII grant him a cause of action to sue NAS?
In considering the first question, the Supreme Court found that, if the facts alleged by Thompson were true, NAS’s firing of him constituted unlawful retaliation under Title VII. Citing its previous opinion in Burlington N. & S. F. R. Co. v. White, 548 U.S. 53 (2006), where the Court held that Title VII’s antiretaliation provision (1) must be construed to cover a broad range of employer conduct and (2) that it prohibits any employer action that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination,” the Court quickly concluded that a reasonable worker very well might be dissuaded from engaging in a protected activity if she knew her fiancée would be fired.
During oral argument, NAS raised concerns about what types of relationships are entitled to protection (girlfriend, close friend, or trusted co-worker) suggesting that an employer is at risk every time it fires an employee who has a connection to the employee who filed the charge with the EEOC. The Court did acknowledge NAS’s point, but declined to identify a fixed class of relationships for which “third-party reprisals are unlawful.” To provide employers with some guidance, the Court indicated that firing a close family member will almost certainly meet the Burlington N. &S. F. R. Co., standard noted above, but that a milder reprisal against a mere acquaintance “will almost never do so.” Beyond that limited guidance, the Court was reluctant to generalize and indicated that because of the broad statutory language and the variety of workplaces in which retaliation may occur, “Title VII’s antiretaliation provision is simply not reducible to a set of clear rules.” However, the Court did emphasize that “the provisions’ standard for judging harm must be objective so as to avoid the uncertainties and unfair discrepancies that can plague a judicial effort to determine a plaintiff’s subjective feelings.”
In considering whether Thompson had standing to sue NAS for retaliation in violation of Title VII, the Court analyzed some of its previous opinions and dictum and found that Thompson did “fall within the zone of interests protected by Title VII.” To reach this conclusion, the Court reviewed and rejected its own dictum in a 1972 case that suggested that the Title VII “person aggrieved” requirement conferred a right to sue on “all who satisfied Article III standing” and rejected NAS’s argument that the “person aggrieved” could only relate to the person who engaged in the protected activity. Instead, the Court determined that there was a common usage of the term “person aggrieved” that avoided these two extremes.
Citing the Administrative Procedures Act, which authorizes suit to challenge a federal agency by any “person . . . adversely affected or aggrieved . . . within the meaning of the relevant statute,” the Court noted that it has previously held that this language established that a plaintiff may not sue unless he “falls into the ‘zone of interest’ sought to be protected by the statutory provision whose violation forms the legal basis for his complaint.” The Court then noted that it has described the “zone of interests test as denying a right of review if the plaintiff’s interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot be reasonably assumed that Congress intended to permit the suit.” Here, the Court held that the term “aggrieved” in Title VII incorporates this test, enabling suit by any plaintiff with an interest “arguably sought to be protected by the statutes.” As a result, the Court found that hurting Thompson was the unlawful act by which NAS punished Regalado putting him in the “zone of interests” to be protected by Title VII and making him a “person aggrieved” with standing to sue.