The following article appeared in the January 31, 2011 edition of the Connecticut Law Tribune.
By Mark Dumas
Title VII of the federal Civil Rights Act prohibits companies from retaliating against employees who file discrimination charges, but does the act protect a complainant’s friends and family from retaliation as well?
Last week, the U.S. Supreme Court addressed this issue in a unanimous decision that plaintiffs’ lawyers are hailing as a landmark victory for whistleblowers. Employers, in contrast, are now left wondering whether previously unprotected employees will now be shielded from adverse employment actions because of a co-worker’s unrelated discrimination complaint.
The story of Thompson v. North American Stainless begins, like many employment law cases, with an office romance. Eric Thompson was a metallurgical engineer at North American Stainless where he met his future fiancée, Miriam Regalado, a quality-control engineer. In February 2003, the couple was engaged when management learned that Regalado had filed a sex discrimination complaint against the company with the Equal Employment Opportunity Commission (EEOC). Three weeks after the company was notified of the charges, Thompson was fired.
Because of the suspicious timing of his termination, Thompson filed a complaint with the EEOC claiming that North American Stainless violated Title VII’s anti-retaliation provisions by discharging him in retaliation for his fiancée’s complaint. When the case reached the district court, the company was granted summary judgment on the grounds that Title VII does not permit third-party retaliation claims. The 6th Circuit then affirmed that decision, holding that Thompson did not personally engage in any protected activity and therefore was not included in the class of persons for whom Congress created a cause of action for retaliation.
Zone Of Interest
In reversing the lower courts, the Supreme Court addressed two issues; first, whether terminating Thompson in retaliation for his fiancée’s EEOC complaint was unlawful under Title VII; and second, whether Thompson had standing to pursue a claim of retaliation in addition to any claim of retaliation by Regalado herself.
The Court held with “little difficulty” that Thompson’s termination would violate Title VII if the allegations of his complaint were proven true. Writing for the Court, Justice Antonin Scalia stated that while the anti-discrimination provisions of Title VII are limited to discriminatory actions that affect the terms and conditions of employment, the anti-retaliation provisions prohibit employers from taking any action that might dissuade “a reasonable worker from making or supporting a charge of discrimination.”
Accordingly, the Court held that any reasonable worker would be dissuaded from filing a charge of discrimination if she believed her fiancé could be terminated because of her complaint.
The Court next addressed whether Thompson had standing to sue as a “person aggrieved” under Title VII. In doing so, the Court relied on the “zone of interest” test applied to similar language in the Administrative Procedure Act. Citing Lujan v. National Wildlife Federation,497 U. S. 871, 883 (1990), the Court held that under this standard, “a plaintiff may not sue unless he ‘falls within the “zone of interests” sought to be protected by the statutory provision whose violation forms the legal basis for his complaint.’” Stated differently, a third-party retaliation claim under Title VII must be denied “if the plaintiff’s 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 recognized this test could result in retaliation suits any time a company fires an employee who is somehow associated with a co-worker who files a discrimination complaint, but the Court argued that this concern did not justify “a categorical rule that third-party reprisals do not violate Title VII.” And in a passage that will be cited against employers in hundreds of briefs, the Court stated that, “We think there is no textual basis for making an exception to it for third-party reprisals, and a preference for clear rules cannot justify departing from statutory text.”
So what does that mean for both plaintiffs and employers? Mostly it means that the lower courts are left to sort out which third-party employee relationships are in the “zone of interest” for the purpose of Title VII retaliation cases. Unfortunately, the Supreme Court provided almost no guidance except that firing a close family member will almost always meet the standard and minor actions against mere acquaintances will almost never meet it.
Will such claims apply to girlfriends and boyfriends? Best friends? A father’s brother’s nephew’s cousin’s former roommate? Your guess is as good as Justice Scalia’s.
Lessons for Employers
Despite this uncertainty, employers can learn several important lessons from Thompson v. North American Stainless. First, until further guidance is provided by the courts, employers should pay careful attention to the close relationships between employees who file discrimination complaints and their co-workers.
Second, always be mindful of the timing of adverse employment actions. Temporal proximity of events may give rise to an inference of retaliation for the purposes of establishing a prima facie case of retaliation under Title VII. If the employer in Thompson simply had better timing, you probably would not be reading this article.
Finally, be wary of retaliation claims. While discrimination charges are the most obvious concern for many employers, the risk of retaliation cases is growing and such claims are frequently more difficult to defend. This trend is shown by a recent EEOC report that stated that in 2010 the number of retaliation claims filed with the agency surpassed the number of racial discrimination complaints for the first time. If you respond to a discrimination complaint properly, you can avoid adding to that trend in 2011.