In yet another expansion of the scope of retaliation protections under Title VII1 , on January 24, 2011, the U.S. Supreme Court unanimously held that an employee who is a “close associate” of another employee who files a discrimination claim may sue the employer for retaliation.

Eric Thompson was fired, allegedly in response to a sex discrimination complaint his fiancée (also an employee of the same company) filed with the EEOC. Three weeks after the EEOC contacted the company to investigate the fiancée’s Charge, Thompson (who was not interviewed in the investigation) was fired. Although the company claims he was fired for poor performance and for writing a derogatory memo about the company’s management practices, he claims he was fired in retaliation for his fiancée’s Charge. The trial court and (eventually) the Sixth Circuit Court of Appeals ruled that Thompson could not bring a retaliation claim because he did not personally oppose an unlawful employment practice or assist in an investigation.

The Supreme Court reversed the lower courts’ rulings, reasoning that Title VII’s purpose “is to protect employees from their employers’ unlawful actions,” and holding that Thompson falls within the “zone of interests” protected by Title VII. Hearkening back to the standard enunciated in its 2006 Burlington Northern Santa Fe case, the Court found that a “reasonable worker might be dissuaded” from engaging in protected activity if she knew that her fiancé would be fired.

The Court instructed that firing a complaining employee’s close family member will “almost always” meet the standard but declined to specify any fixed class of individuals or particular prohibited act within Title VII’s protection because “the significance of any given act of retaliation will often depend upon the particular circumstances.” Moreover, the Court pronounced that “Title VII’s anti-retaliation provision is simply not reducible to a comprehensive set of clear rulings.”

This latest case establishes once again that retaliation cases are even more fact-intensive than other discrimination claims. That means they are less susceptible to summary judgment, and instead must be tried to juries. (This very case has been sent back to trial to determine why Thompson was fired. No jury has answered that question – yet.)

What Employers Should Do

Given the ambiguities about how “close” an association must be to bring non-complaining parties within statutory protection, employers must redouble their efforts to avoid situations where retaliation – real or perceived – can easily occur. We recommend employers consider the following actions:

  • Train your managers and supervisors on the expanding scope of these anti-retaliation protections and the range of their actions that could “dissuade a reasonable person” from complaining.
  • Minimize the number of people who know about and are involved in any Charge or protected complaint.
    • This can help protect complainants, witnesses, and “close associates” from retaliation, and supervisors and the company from claims of retaliation.
  • Instruct – in writing – every supervisory representative who does know about the complaint or is involved in the investigation of the anti-retaliation protections.
    • Special care should be taken when the target of the complaint is a supervisor or manager. (When the complaint is of discrimination as distinguished from harassment, the target inevitably is a manager or supervisor.)
    • Re-evaluate your rules regarding the placement of family members and “close associates.” (If you allow family members and “close associates” to work for the organization, do you require that they work in separate departments, and/or with different supervisors, and/or on different shifts?) If they work in different areas and/or for supervisors, you can better shield those supervisors from knowledge of the complaint.
  • If any adverse action toward any complainant, witness, or “close associate” is contemplated, it would be best, if possible, for that decision to be made by someone without knowledge of the individual’s complaint or involvement or association.
  • Whether or not decision makers have knowledge of the complaint, involvement, or participation, fully verify and document the legitimate, non-retaliatory reasons for any adverse action taken.

Remember: The closer in time any adverse action is to the protected complaint (or the decision maker’s knowledge of the complaint), the stronger the inference of retaliatory intent. Make sure the action you intend to take is worth the risk you incur.