The U.S. Supreme Court has just decided that an employer cannot “get back” at an employee who has complained about discrimination by going after other employees related to or in a close relationship with the complaining employee. By ruling in favor of a man who was fired after his fiancée complained about alleged sex discrimination at the same company, the Court’s decision in Thompson v. North American Stainless, LP has expanded Title VII anti-retaliation jurisprudence to encompass employees who themselves do not engage in “protected activity” as defined by the statute. Finding that the fiancée fell within the “zone of interests” of protection afforded by Title VII, he thus qualified as a “person aggrieved with standing to sue.” The decision is significant for employers because it establishes important precedent authorizing retaliation claims by employees other than the employee who made the original complaint of discrimination. Employers should make sure that their written anti-retaliation policies make clear to managers and supervisors that, after a claim of discrimination has been made, it is against company policy to retaliate not only against the employee making the claim but against any employee related to or in a close relationship with the complaining party.
Eric Thompson and his fiancée, Miriam Regalado, both worked for North American Stainless (“NAS”). Their relationship was common knowledge to their employer. In February 2003, Regalado filed a charge with the Equal Employment Opportunity Commission (“EEOC”) alleging sex discrimination. Three weeks later, NAS fired Thompson. Conciliation efforts with the EEOC were unsuccessful, and Thompson then sued NAS under Title VII, claiming that NAS had fired him in order to retaliate against Regalado for filing her charge with the EEOC. Reasoning that because Thompson did not “engage in any statutorily protected activity, either on his own behalf or on behalf of Regalado,” and that he “was not included in the class of persons for whom Congress created a retaliation cause of action,” the district court granted summary judgment to NAS, concluding that Title VII “does not permit third party retaliation claims.” The Sixth Circuit Court of Appeals affirmed.
The Supreme Court’s Decision
Writing for the majority, Justice Scalia began by comparing the statutory language of Title VII’s anti-retaliation provision with its substantive anti-discrimination provision. Title VII prohibits discrimination on the basis of race, color, religion, sex, and national origin “with respect to . . . compensation, terms, conditions, or privileges of employment,” and discriminatory practices that would “deprive any individual of employment opportunities or otherwise adversely affect his status as an employee.”
Title VII’s anti-retaliation provision, however, prohibits any employer action that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Interpreting this statutory language, the Court had no difficulty concluding that “a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.”
Having addressed the scope of Title VII’s anti-retaliation provision, the Court then analyzed “the more difficult question in this case,” which was whether Thompson himself could sue. Noting that Title VII provides that “a civil action may be brought . . . by the person claiming to be aggrieved,” the Supreme Court found that Thompson was himself a “person aggrieved” within the meaning of Title VII and applied a “zone of interests” test to determine that he had standing to sue under the statute. To illustrate, the Court emphasized that “injuring him was the employer’s intended means of harming Regalado. Hurting him was the unlawful act by which the employer punished her.” As such, the Court concluded that he qualified as a “person aggrieved with standing to sue.”
While acknowledging the fact that the decision would lead to “difficult line-drawing problems concerning the types of relationships entitled to protection,” the Court did not believe such a concern justified a “categorical rule that third-party reprisals do not violate Title VII.” Indeed, the Court also “decline[d] to identify a fixed class of relationships for which third-party reprisals are unlawful.” Specifically, the Court speculated that “firing a close family member will almost always [suffice, but] inflicting a milder reprisal on a mere acquaintance will almost never [be enough].”
It is important for employers to be aware of the implications of the Supreme Court’s decision in Thompson v. North American Stainless, LP. Because third parties now have standing to sue for retaliation under Title VII – even when they do not engage in any protected activity – employers should be cautious in taking any adverse employment action against a spouse, fiancé, or family member of an employee who has, in fact, engaged in protected conduct under the statute. The decision does, however, create a number of delicate issues for employers. While spouses, fiancés, and family members would undoubtedly qualify as relationships entitled to protection, the Court did question whether “firing an employee’s girlfriend, close friend, or trusted co-worker,” would “dissuade the employee from engaging in protected activity.” The Supreme Court’s decision declined to delineate a bright-line rule, and instead instructed lower courts that “the significance of any given act of retaliation will often depend upon the particular circumstances.” In light of the Thompson case, employers should consider revising their anti-retaliation policies as noted above. Additionally, cautious employers should ensure that their legitimate reasons for terminating employees or taking other adverse actions are sufficiently and properly documented.
Michael J. Riccobono is an Associate in the Gibbons Employment Law Department.