On January 24, a unanimous U.S. Supreme Court expanded the scope of retaliation liability for employers under Title VII of the Federal Civil Rights Act of 1964. In overruling precedents in a number of circuits (including the Eighth), the Court held that an employee who has not engaged in any protected activity has a valid cause of action for retaliation if the employer took adverse action against him because of his connection to another employee who had filed a charge of discrimination with the EEOC. The future scope of this type of "third party retaliation claim" is unsettled, but is consistent with the Supreme Court's recent expansion of Title VII retaliation liability.
In Thompson v. North American Stainless, L.P., both Eric Thompson and his fiancée, Miriam Regalado, were employed by North American Stainless ("NAS"). Regalado filed an EEOC charge alleging sex discrimination against NAS. Thompson admitted that he did not engage in any statutorily protected activity, either on his own behalf or on behalf of his fiancée. But three weeks after Regalado filed her charge, NAS fired Thompson. Thompson then filed his own EEOC charge and subsequent lawsuit alleging that NAS had intentionally retaliated against him because his fiancée had filed a charge with the EEOC, claiming his relationship to his fiancée was the sole motivating factor in his termination. The District Court granted summary judgment to NAS, which was ultimately affirmed by a divided Sixth Circuit sitting en banc. Both Courts reasoned that because Thompson did not engage in any statutorily protected activity, he was not included in the class of persons for whom Congress created a retaliation cause of action. The U.S. Supreme Court reversed.
In an opinion written by Justice Scalia, the Court assumed the truth of Thompson's allegations for purposes of its opinion, and had little trouble finding that NAS's firing of Thompson constituted unlawful retaliation. Relying on its recent decision in Burlington Northern Santa Fe v. White, the Court reasoned that Title VII's anti-retaliation provision prohibits any adverse action that "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." The Court characterized as "obvious" the conclusion that a reasonable worker might be dissuaded from engaging in protected activity if he or she knew that the worker's fiancée would be fired.
The second question was more difficult, namely, whether Thompson had a viable cause of action for retaliation because he had not engaged in any protected activity. The lower courts had answered that question in the negative because Title VII makes it an unlawful employment practice for an employer to discriminate against any employee "because he has opposed" an unlawful employment practice or "because he has made a charge, testified, assisted or participated" in any discrimination proceeding or investigation. 42 U.S.C. § 2000e-3(a). The Supreme Court, however, observed that Title VII authorized a civil action to be brought "by the person claiming to be aggrieved." 42 U.S.C. § 2000e-5(f)(1). The court rejected as unreasonably narrow the interpretation of Title VII that would have excluded from the ambit of the term "person claiming to be aggrieved" any employee who had not engaged in protected activity. Relying on cases decided under the Administrative Procedure Act that interpreted similar language in that statute, the Court held that the term "aggrieved" in Title VII encompasses those plaintiffs who "fall within the zone of interests sought to be protected" by the statute. Applying that test to Thompson and his fiancée, the court concluded that Thompson fell within the zone of interest protected by Title VII because Thompson was an employee of NAS and the purpose of Title VII is to protect employees from retaliatory adverse actions by the employer.
The bottom line for employers is that the zone of protected activity is broader than simply protection of the employee who engages in the activity. The scope of that zone will be decided on a case-by-case basis in the courts, and just how far the Supreme Court will extend the types of relationships entitled to protection is anyone's guess. For its part, the Supreme Court acknowledged that an employer will theoretically have some risk whenever it fires any employee who happens to have a connection to another employee who has engaged in protected activity. At the same time, the Court refused to list a set of relationships that come within the ambit of the anti-retaliation provision. "We expect 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, but beyond that we are reluctant to generalize."
While third party retaliation claims have not been very common, the Thompson decision has the potential to spawn more litigation. For example, just how close must the relationship be to fall within the zone of protection? A spouse or fiancée will qualify, but what about a boyfriend or girlfriend? A distant relative? A social friend? What about a co-worker who has simply provided moral support to an employee who has filed a charge or made an internal complaint of discrimination or harassment? What if the employer is in a position to negatively impact a close relative who works elsewhere, such as at a key vendor of the employer? Must the third party retaliation claimant be an employee?
The answers to these questions will be fought over in the lower courts for years to come. For the time being, employers should evaluate each situation on its own set of circumstances when making disciplinary decisions regarding employees. An employer should not quickly ignore or discount a family relationship to another employee who has engaged in protected activity. Given that a key factor in the result in Thompson was the closeness of the relationship of the persons involved, the decision provides an additional reason for employers to consider, implement and/or enforce nepotism policies.