Employment Law Update
Supreme Court Expands Class of Potential Plaintiffs Who Can File Retaliation Claims Under Title VII To Include Third-Parties
Retaliation Claims on the Increase
The filing of retaliation charges has been increasing for years, and in 2010 the EEOC reported that retaliation claims surpassed race discrimination for the first time as the most-filed type of complaint. The increase is owed in part to a series of Supreme Court decisions over the last five years that have broadly interpreted the prohibition against retaliation under Title VII of the Civil Rights Act. In 2006, the Court held in Burlington v. White, that to prove retaliation, plaintiffs do not need to show that they were subject to an “ultimate” adverse employment action, such as termination or demotion. Instead, a plaintiff need only show that she/he was subject to an action which would dissuade a reasonable employee from engaging in a protected activity. In 2009, the Court held in Crawford v. Metropolitan Government of Nashville, that an employee or witness who describes what she/he reasonably believes to be discriminatory conduct in answer to questions during an employer’s internal discrimination investigation has engaged in protected activity, and is entitled to protection against retaliation under Title VII. In January 2011, a third Supreme Court decision again expands the scope of retaliation claims.
Third-Party Claims Now Allowed
The Court held that a retaliation claim under Title VII can be filed by employees who are not directly involved in protected activities. In the case, Thompson v. North American Stainless, both the plaintiff, Eric Thompson, and his fiancée, Miriam Regalado, were employees of North American Stainless (NAS). In February 2003, the EEOC informed NAS that Regalado had filed a sex discrimination charge. About three weeks later, NAS fired Thompson. Thompson claimed he was fired in retaliation for Regalado having filed a charge with the EEOC. NAS claimed Thompson was fired for performance reasons.
The trial court granted summary judgment in favor of NAS, holding that Title VII does not permit retaliation claims by third parties who do not themselves engage in any protected activity. The Court of Appeals for the Sixth Circuit agreed and affirmed the decision dismissing the case. Thompson appealed to the Supreme Court, which, in a unanimous decision, reversed the lower courts.
Justice Scalia, writing for the Court, had no problem finding that Thompson's firing constituted an actionable retaliatory act and held “[w]e think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew her fiancé would be fired.” NAS argued that allowing third parties to bring retaliation actions would create uncertainty as to the types of related parties who might be entitled to such protection. While acknowledging the issue, the Court rejected that concern as reason categorically to proscribe suits by injured third-parties. The Court declined to set any precise limits, but noted that “[w]e expect that firing a close family member will almost always meet the Burlington standard, and inflicting milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize.”
While it was clear from prior cases that the discharge of Thompson could be illegal retaliation against Regalado, this case raised the more difficult question of whether Thompson had the right to sue NAS for retaliation under Title VII, where he had not engaged in a protected action himself. The Court noted that Title VII provides that an action may be brought by “the person claiming to be aggrieved,” but does not require him/her to be the same person who engaged in the protected activity. Instead, the Court held that a plaintiff may not sue unless he “falls within the ‘zone of interests’ sought to be protected” by the statute. While declining specifically to define the “zone," the Court held that it must be someone with an interest “arguably [sought] to be protected by the statutes” at issue. In this case, the Court noted that the complaint alleges that “Thompson is not an accidental victim of the retaliation – collateral damage, so to speak, of the employer’s unlawful act.” Instead, “injuring him was the employer’s intended means of harming Regalado.” In other words, whatever the scope of the “zone” to be protected by the statute, Thompson was well within its boundaries.
Writing separately in a concurring opinion, Justice Ginsberg noted that the EEOC had long taken the position that Title VII “‘prohibits retaliation against someone so closely related to or associated with the person exercising his or her statutory rights that it would discourage or prevent the person from pursuing those rights.’” There is, however, a world of difference between the EEOC taking a position, and the Supreme Court holding that the law prohibits a given action. Thompson has legitimized an entirely new class of retaliation claims.
What Steps Should Employers Take?
Employers are already aware that they must be cautious when taking an adverse action against an employee who has engaged in a protected activity such as complaining about discrimination or filing a charge with the EEOC or local agency. Employers must now exercise caution when taking action against employees who are related to, or associated with, an individual who engaged in protected conduct.
The question left unanswered by the Supreme Court is how close the third-party’s relationship with the employee engaging in the protected activity must be to result in the third-party being protected under Title VII. The answer lies in whether the individual’s relationship with the employee who engaged in the protected activity was close enough, and the adverse action severe enough, to dissuade a reasonable employee from engaging in the protected activity.
Certainly, the family members and fiancée of the employee will qualify. But what about close friends, teammates or partners on projects, and others with whom a complaining employee has some relationship? Should contemplated action adverse to them be analyzed as if they too had engaged in protected conduct? The answer is that employers will have to assess each situation as it arises. Examining whether the proposed target of discipline is associated with an employee who engaged in a protected act, and, if so, how closely associated, will now become just one more factor in the decision making process.