Employers must use caution in taking adverse action against an employee who is a family member, relative, or perhaps even a close friend of another employee who has complained about workplace discrimination. In a recent ruling, in Thompson v. North American Stainless, LP, the United States Supreme Court unanimously held that the anti-retaliation provision in Title VII of the Civil Rights Act prohibits employers from retaliating against employees who have filed discrimination claims by taking reprisals against a family member or other third party related to the employee.
The Thompson Decision
In Thompson, plaintiff Eric Thompson and his fiancée, Miriam Regalado, were employed by North American Stainless, LP (“NAS”). In February 2003, the Equal Employment Opportunity Commission (“EEOC”) notified NAS that Regalado had filed a sex discrimination charge against the company pursuant to Title VII, the federal law that prohibits employment discrimination based on various factors, including sex. Three weeks later, NAS terminated Thompson’s employment. Thompson then filed a retaliation claim with the EEOC, and ultimately a lawsuit in federal court, against NAS under Title VII. Thompson claimed that NAS fired him to retaliate against Regalado for filing the EEOC charge against the company. The district court dismissed the case, holding that Title VII does not permit third party retaliation claims. The United States Court of Appeals for the Sixth Circuit affirmed.
In reversing the lower courts’ rulings, the Supreme Court addressed two primary issues: (1) whether NAS’s termination of Thompson’s employment constituted unlawful retaliation; and (2) whether Thompson could assert a retaliation claim under Title VII since he himself had not engaged in any protected conduct under the statute.
With regard to the first issue, the Court first observed that Title VII’s anti-retaliation provision prohibits any employer action that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination” In applying that test, the Court held that Thompson’s firing violated Title VII because a reasonable employee might be dissuaded from making a charge of discrimination if she knew that her fiancé would be fired as a result. As to the second issue, the Court noted that the language of the statute permits any person “claiming to be aggrieved” to file a Title VII retaliation lawsuit. The Court held that the term “aggrieved” covers persons with an interest that Title VII seeks to protect, i.e., employees. Thompson satisfied this standard as he was an employee alleging unlawful conduct by his employer -- conduct that Title VII was clearly intended to address.
Implications for Employers
One significant question that the Supreme Court left unanswered is which specific categories of relationships qualify for protection against employer reprisals? For example, will an employer be subject to liability for firing an employee who is friends with another employee who has filed a discrimination charge?
While refusing to create a bright line test or other specific boundaries, the Court made clear that firing a close family member will almost always meet the test, and that a more mild action affecting a mere acquaintance will almost never do so. The absence of a “bright line” rule will, however, undoubtedly create uncertainty for employers when considering actions that may negatively affect employees who may have more than a passing workplace acquaintance with another employee who has engaged in conduct protected by Title VII. Whether a relationship and employer conduct that falls between the two extremes mentioned by the Court will be actionable will depend upon the particular circumstances.
Like Title VII, the New Jersey Law Against Discrimination (“LAD”) prohibits reprisals against employees who make complaints of discrimination. We expect that the New Jersey courts will apply the ruling in Thompson to cases involving third party retaliation claims brought under the LAD.
Since the Thompson decision opens the door to third-party retaliation claims, employers should be extremely cautious about taking any action with respect to one employee as a response to protected conduct of another employee. Employers should ensure that there are legitimate, documented, non-discriminatory and non-retaliatory reasons underlying any employee disciplinary action or any action that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Finally, employers should ensure that their anti-retaliation and anti-discrimination policies satisfy Title VII’s and the LAD’s requirements.