The Supreme Court on Jan. 24 unanimously ruled that the fiancé of a woman who filed an EEOC discrimination complaint was protected from retaliation by their mutual employer and can now sue for retaliation.
In Thompson v. North American Stainless, LP, (No. 09-291, U.S. Supreme Court, 2011) the High Court held that long-standing EEOC interpretations of the scope of the anti-retaliation provision of Title VII of the Civil Rights Act of 1964 apply to an individual harmed by retaliation, even if that person had not himself filed a charge of discrimination.
Plaintiff Eric Thompson is now free to sue the employer that fired him after his fiancé complained about sex bias.
The case has important implications for all employers, especially now that retaliation claims lead all other EEOC charges, according to the commission’s latest statistics. The court’s decision will likely embolden the EEOC to crack down even harder on retaliation.
First discrimination, then retaliation
The case began in Kentucky, where Eric Thompson was engaged to Miriam Regalado, a co-worker at North American Stainless. Regalado filed a gender discrimination charge with the EEOC. Everyone who worked with them at North American Stainless knew about their relationship.
Three weeks after Regalado filed her EEOC complaint, the company fired Thompson, allegedly for poor performance.
Thompson filed his own EEOC complaint, alleging retaliation for supporting his fiancée in her sex discrimination case. The EEOC sided with him, and Thompson filed a federal lawsuit.
The trial court threw out the case, reasoning that the law didn’t protect third parties from retaliation.
A panel of the 6th Circuit Court of Appeals reversed the lower court’s decision and reinstated the case. It reasoned that by punishing Thompson, the employer might have been trying to get back at Regalado—and that might be enough to dissuade a reasonable employee from filing a discrimination complaint, the key component of a retaliation case.
But when North American Stainless appealed again, the full 6th Circuit sided with the company. Thompson appealed to the Supreme Court.
Supreme Court’s reasoning
All eight justices who heard the case agreed that Thompson had standing to sue for retaliation because Title VII was clearly intended to protect all those who might be harmed by retaliation, not just those who filed discrimination complaints. Justice Antonin Scalia, who wrote the court’s opinion, said Thompson was “well within the zone of interests sought to be protected by Title VII.”
Justice Elena Kagen did not participate in the case because she had helped the government prepare its arguments when she served as Solicitor General of the United States.
Scalia wrote, “We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.”
That’s the test laid out in the Supreme Court’s landmark 2006 decision in Burlington Northern v. White: Would the threat of an employer’s adverse employment act dissuade a reasonable person from complaining about discrimination in the first place?
The court didn’t draw a bright line in its Thompson decision. The justices declined to say exactly who beyond the plaintiff it might cover. “What about firing an employee’s girlfriend, close friend or trusted co-worker?” Scalia mused.
“We expect that firing a close family member” amounts to unlawful retaliation, Scalia wrote, while “inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize.”
What employers should do
With such uncertainty, employers need to be extra cautious before acting against an employee who has a relationship with a co-worker who has complained about illegal discrimination.
“The easy way to look at today’s decision,” said Michael Fox, an employment law attorney with Ogletree Deakins and editor of HR Specialist’s Texas Employment Law, “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.”
In light of the Supreme Court’s ruling, employers should:
- Tread carefully when contemplating any kind of adverse employment action against the spouse, fiancé or family member of an employee who has engaged in a protected activity such as complaining about discrimination. Consult your attorney before you do so. One possible, partial solution: Create an anti-nepotism policy that forbids hiring relatives or close associates of current employees.
- Carefully document all performance, attendance and disciplinary problems you may have with such an employee. The Supreme Court’s decision does not give relatives or close associates of complaining employees a free pass. However, you must be prepared to show that you would have taken an adverse employment action against the employee under any circumstance.
- Be absolutely consistent in how you treat all employees. If you can show that you would have taken an adverse employment action against other employees under similar circumstances, you should be safe.
- Guard against all forms of “association discrimination.” The ADA specifically forbids acting against an employee because of his or her “association” with someone in a protected category. Now with the Supreme Court’s Thompson decision, it’s likely that protection will be extended to other laws.