On January 24, 2011, in Thompson v. North American Stainless, LP, the U.S. Supreme Court expanded the scope of retaliation protection provided by Title VII. The Court ruled that prohibitions against retaliation extend not only to employees who oppose an unlawful employment practice or file a charge of discrimination, but also to a fiancé of an employee who filed a charge of discrimination against their common employer.
The Court reiterated its earlier holding in Burlington N. & S. F. R. Co. v. White, 548 U.S. 53 (2006), 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.” Under this standard, Justice Scalia wrote for the Court in Thompson: “We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.” The Court declined “to identify a fixed class of relationships for which third-party reprisals are unlawful” and said only that “[w]e expect that firing a close family member will almost always meet the Burlington standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so.”
As a consequence of the Thompson opinion, employers should expect an increase in the number of lawsuits filed by employees who will attempt to establish a close relationship with another employee who filed a charge or opposed alleged discrimination. The opinion gives decision-makers another risk to consider when making an adverse employment decision.
For a list of steps that employers should take to avoid litigation as a result of this decision, see EpsteinBeckerGreen’s Act Now Advisory entitled “Supreme Court Rules that Fiancé of Protester Is Protected from Retaliation.”