January 24, 2011
High Court Rules Workers May Sue For Third–Party Retaliation
Submitted By: Shaun Haley, SNHRA Board of Directors, Of Counsel, Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
This morning, with Justice Antonin Scalia writing an opinion supported by eight justices, the U.S. Supreme Court held that an employee who was fired shortly after his fiancée filed a bias charge against her employer may sue under Title VII of the Civil Rights Act of 1964 for third-party retaliation. According to the high court, the employee could be considered an "aggrieved person" under Title VII because he was "well within the zone of interests sought to be protected by Title VII." Thompson v. North American Stainless, LP, No. 09–291, U.S. Supreme Court (January 24, 2011).
Eric Thompson and his fiancée, Miriam Regalado, were employees of North American Stainless, LP (NAS). Three weeks after Regalado filed a sex discrimination charge against NAS with the Equal Employment Opportunity Commission (EEOC), the company fired Thompson.
Thompson filed suit against NAS under Title VII claiming that the company fired him to retaliate against Regalado for filing her EEOC charge. The U.S. District Court for the Eastern District of Kentucky granted summary judgment in favor of NAS. The Sixth Circuit Court of Appeals reversed, but later affirmed, reasoning that because Thompson did not engage in a statutorily protected activity he was not "in the class of persons for whom Congress created a retaliation cause of action."
The case eventually reached the U.S. Supreme Court. The Justices considered two issues: (1) Did NAS's firing of Thompson constitute unlawful retaliation? (2) If so, does Title VII grant Thompson a cause of action?
The U.S. Supreme Court first noted that Regalado's filing of a charge with the EEOC constituted "protected activity" under Title VII. The Court also assumed that NAS fired Thompson to retaliate against Regalado (which Thompson will be required to prove at trial). Justice Scalia then turned to the first issue, namely whether Thompson's termination constitutes unlawful retaliation. According to the Court, Title VII's anti-retaliation provision should be construed to cover a broad range of employer actions including conduct that "might have dissuaded a reasonable worker from making or supporting a charge of discrimination."
The Justices unanimously concluded that it is "obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired." In so finding, the Court rejected the company's "line-drawing" argument that, according to this standard, employers would be at risk any time they fire an employee who is connected to an employee who has filed an EEOC charge. Unfortunately, however, the Court refused to identify a class of relationships for which third-party retaliation would be unlawful.
Turning to the second issue—whether Thompson may sue under Title VII for third-party retaliation—Justice Scalia first noted that Title VII provides that "a civil action may be brought ... by the person claiming to be aggrieved." In defining "person aggrieved," the Court relied on a "zone of interests" test. According to the Court, a plaintiff may sue if he or she "falls within the 'zone of interests' sought to be protected by the statutory provision whose violation forms the legal basis for his complaint." Conversely, a plaintiff may not sue if his or her interests "are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit."
The Court concluded that since the purpose of Title VII is to protect employees from their employers' unlawful actions, Thompson fell within the zone of interests protected by the statute. In arriving at this conclusion, the Court also noted that injuring Thompson was the employer's alleged means of harming or punishing Regalado. Holding that Thompson has standing to sue under Title VII, the Supreme Court reversed the judgment of the Sixth Circuit.
According to Thomas Barnard, a shareholder in Ogletree Deakins' Cleveland office, "This is a very important decision that should be noted by all employers, especially since retaliation has now become the most prevalent type of charge filed with the EEOC. Justice Scalia writing for a unanimous Supreme Court made it clear that the anti-retaliation provisions of Title VII are not limited to the charging party or plaintiff but may protect close relatives or, in this case, a fiancé, employed by the same company. Employers will need to resist the temptation to fire a spouse, significant other or close relative because his/her relationship would 'be a problem' in defending a discrimination charge or lawsuit. This doesn't give the relative a free pass, but before any action is taken that may be considered retaliatory, employers need to carefully review their options with counsel."
Michael Fox, a shareholder in Ogletree Deakins' Austin office added: "As of now, employers have an unclear line (conceded by Justice Scalia) about which relationships will be considered sufficient to extend one employee's concerted activity to another. This is because the Court specifically declined 'to identify a fixed class of relationships for which third-party reprisals are unlawful' and instead ruled that 'the significance of any given act of retaliation will often depend upon the particular circumstances.' The guidelines, to the extent we have them are this: 'We 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, but beyond that we are reluctant to generalize ... Given the broad statutory text and the variety of workplace contexts in which retaliation may occur, Title VII's antiretaliation provision is simply not reducible to a comprehensive set of clear rules.' The easy way to look at today's decision is that the zone of protected activity is now expanded beyond the protection of the one who engages in the activity. Just how far and under what circumstances that zone will reach will be fought out in the courts—a battle that no doubt starts today."