Retaliation claims, almost always joined in the same action with discrimination claims, have been on the rise in recent years, aided by the United States Supreme Court. Retaliation claims are dangerous for employers because they can be easier to prove than a discrimination case and offer juries an alternative way to rule for a plaintiff. The Supreme Court’s decision in the Thompson case continues a recent trend of employee-friendly rulings in retaliation cases. Thompson will expand the prevalence of retaliation claims by adding a dangerous expansion of the remedy wrinkle: third party suits. Employers need to understand the implications of Thompson . Employers should ensure that their human resources staff and managers are prepared to ensure legal compliance with this expanded liability. Among other steps, using a operational manager or human resources manager trained in the implications and scope of this new liability is critical. Screening planned adverse actions to properly document legitimate adverse actions (or to stop illegitimate ones) in light of possible legal risks is even more important after Thompson .
The anti-retaliation provision of Title VII of the Civil Rights Act of 1964 makes it an “unlawful employment practice” for an employer to discriminate against an employee for engaging in certain statutorily protected activity, including filing a charge under Title VII. The statute allows “the person claiming to be aggrieved” by any “unlawful employment practice” to bring a civil suit after filing a charge with the EEOC. Continuing a trend of employee-friendly cases under Title VII’s anti-retaliation provision, the Untied States Supreme Court recently held that the “person claiming to be aggrieved”—that is, the person authorized to bring suit under Title VII—is “not limited to the person who was the subject of unlawful retaliation.” In other words: a plaintiff may, in certain circumstances, bring a “third-party” retaliation claim despite having not personally engaged in any statutorily protected activity. Thompson v. North American Stainless, LP , No. 02-291, 562 U.S. ___ (Jan. 24, 2011).
Facts
Eric Thompson and his fiancée, Miriam Regalado, worked for a common employer. She filed a charge alleging sexual discrimination with the EEOC, and three weeks later he was fired. Thompson filed suit against the employer, alleging that the employer had fired him to retaliate against Regalado for filing the charge with the EEOC. The trial court ruled for the employer, deciding that because Thompson had not personally engaged in any protected activity, he could not sue under the statute’s anti-retaliation provision. The Sixth Circuit Court of Appeal affirmed. A unanimous Supreme Court reversed, however, opening the door for increased employer liability via third-party suits under Title VII’s broad anti-retaliation provision.
Legal Impact
The viability of a third-party retaliation claim will depend on two important considerations. The first is whether the action taken against the third party can be considered reprisal against the person who engaged in protected activity. This Supreme Court had previously held that the anti-retaliation provision prohibits employer action that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” In Thompson , the Court found it “obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.” Nevertheless, the Court acknowledged that application of such a standard in third-party retaliation claims has the potential to “lead to difficult line-drawing problems concerning the types of relationships entitled to protection.” The Court observed “that firing a close family member will almost always meet” the standard, and “inflicting a milder reprisal on a mere acquaintance will almost never do so.” Beyond these two extremes, however, the Court declined to generalize or “to identify a fixed class of relationships for which third-party reprisals are unlawful.”
The second important consideration is whether the person filing suit is authorized to do so. This question depends on whether the plaintiff falls within the “zone of interests” protected by Title VII. In Thompson , for example, the Court found this test satisfied because “the purpose of Title VII is to protect employees from their employers’ unlawful actions” and the facts alleged demonstrated that hurting the plaintiff “was the unlawful act by which the employer punished” his fiancée.
What it Means for Employers
The upshot of Thompson ? Employers must be extremely vigilant not to take, or allow supervisors or others to take, retributive action against someone close to an employee (particularly a close family member) who engages in Title VII-protected activity. At the same time, employers will need to safeguard against more innocuous conduct as well. For example, even where justified by legitimate reasons, an employer will need to be cautious before firing (or taking other adverse action against) an employee soon after she complains of discrimination, sexual harassment, or other protected activity. But, if she and her husband (or another close relative or associate) both work for the same company, the employer should operate with an adequate degree of precaution as to him, as it would when dealing with her directly. Thus, in addition to the need for caution before taking any action that could be construed as a reprisal against employees who have engaged in protected activity, employers will need to broaden their zone of caution to include action against others closely associated with such employees.
How closely must the employee and third party be associated before the third party is within the zone? Whether and how brighter lines might evolve is unknown. The analysis is inherently context-specific. Because no employer wants to find out the hard way, the best strategy is prevention. To that end, careful documentation and reasoned decision making are, as always, paramount.
If you have any questions about the impact of the Thompson case, or any other employment matters, please contact a member of the Rogers Towers Labor and Employment practice group.