Claims now allowed by employees who have not engaged in any protected activity.

On January 24, 2011, the U.S. Supreme Court issued its decision in Thompson v. North American Stainless, LP, further expanding the scope of retaliation claims under Title VII of the Civil Rights Act of 1964. In Thompson, a female employee of North American Stainless (NAS) filed a sex discrimination charge with the Equal Employment Opportunity Commission (EEOC). The employee's fiancé, Thompson, who also worked for NAS, was subsequently terminated. Thompson claimed that his termination violated Title VII because he was terminated in retaliation for his fiancée having filed a charge of discrimination.

The Supreme Court held:

  • Under the facts as alleged, Thompson's termination constituted unlawful retaliation in violation of Title VII because a reasonable worker might well have been dissuaded from engaging in protected activity, such as filing a charge of discrimination with the EEOC, if she knew her fiancée would be fired.
  • It is impossible to provide specific guidelines for employers as to what types of relationships in the workplace are protected in connection with claims of third party reprisals; however, firing a close relative of an employee who has engaged in protected activity will almost always rise to the level of unlawful retaliation, but inflicting a mild reprisal against a mere acquaintance will almost never do so.
  • Retaliation claims by third parties are limited to claims by persons who fall "within the zone of interests sought to be protected by Title VII." The purpose of Title VII is to protect employees from their employers' unlawful actions. Thompson was entitled to bring a retaliation claim because he was within Title VII's zone of interests – he was an employee of NAS, and hurting him was the unlawful act by which NAS punished his fiancée for filing her charge of discrimination.

What does this mean for employers?

  • The Thompson decision means that virtually every employment decision an employer makes that adversely affects an employee has the potential to be a retaliation claim.
  • Employers must scrutinize every adverse employment decision (no matter how mild) to determine whether the employee subject to the decision has any relationship – relative, girlfriend/boyfriend, close friend, friend, acquaintance, etc. – with another employee who has engaged in conduct protected by Title VII, such as filing a charge of discrimination or opposing some alleged discriminatory act by the employer, to determine whether there is any potential for a retaliation claim.
  • Employers are encouraged to review their policies to determine whether it is appropriate to adopt a stringent nepotism policy, i.e., refusing to employ members of the same family, or a strict non-fraternization policy, i.e., prohibiting employees from dating or otherwise engaging in a romantic relationship, to minimize the potential for third-party retaliation claims.