High Court Decision Prohibits Employers From Retaliating Against Certain Third Parties

January 28, 2011

By: Subhash Viswanathan

Miriam Regalado and her fiancée Eric Thompson worked for North American Stainless (NAS). Regalado filed a sex discrimination charge against NAS with the EEOC. Three weeks later, NAS fired Thompson. Those were the facts presented to the United States Supreme Court when it unanimously decided on January 24, that Thompson could bring a Title VII retaliation claim against NAS even though Thompson never engaged in Title VII protected activity. The Supreme Court’s holding in the case, Thompson v. North American Stainless, LP, effectively broadens the scope of Title VII’s anti-retaliation provisions to protect individuals who have a significant association with or relation to employees who have engaged in protected conduct.

Of course, Title VII makes it illegal for an employer to “discriminate” against an employee who files a charge with the EEOC. But Thompson never filed a charge, Regalado did. The Court surmounted this difficulty by finding that Title VII’s anti-retaliation provision should be construed to prohibit a broad range of employer conduct – a range of conduct much broader than actions which affect the terms and conditions of employment of the employee who filed the charge. Quoting from its decision in Burlington N. & S.F.R. Co. v. White, 548 U.S. 53 (2006), the Court reiterated that “discrimination” under the anti-retaliation provision includes any employer action that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” The Court then concluded logically that “a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancée would be fired.” The Court acknowledged that its decision might create difficulty in determining precisely which types of relationships will be sufficient to conclude that retaliation against the third party would dissuade the individual who engaged in protected activity, but declined to provided a bright line rule. It stated that firing a close family member will “almost always” meet the standard, and retaliating against a “mere acquaintance” will almost never meet it, but declined to provide further guidance.

Finding that the firing of Thompson could be illegal retaliation against Regalado, did not, however, end the inquiry. After all, it was Thompson, not Regalado, who sued for retaliation. To answer the question of whether Thompson could bring a claim against NAS, the Court had to determine what the term “person aggrieved” means in the Title VII provision which permits a “person aggrieved” to bring an action in court. In deciding that question, the Court rejected NAS’s argument that it means the employee who was retaliated against. Instead, the Court concluded that the term means anyone with an interest which Title VII arguably seeks to protect. Thompson fell within this zone of interests because Title VII is designed to “protect employees from their employers’ unlawful actions.” Because, assuming NAS’s motive was retaliatory, NAS tried to punish Regalado by harming Thompson, Thompson was within the Title VII zone of interests. So even though it was Regalado, not Thompson, who suffered illegal retaliation when Thompson was fired, Thompson was still a “person aggrieved” who was allowed to sue. It thus appears that the zone of interests test can be satisfied any time the employer’s action against a third party constitutes prohibited retaliation, thereby allowing the third party to bring a claim.

The significance of the Court’s decision is obvious: the holding invites more retaliation claims by persons “associated with” an employee who has engaged in Title VII protected activity. Essentially, the Court has created a new protected classification, the definition of which is unclear. As a result, an employer must now carefully consider the potential for a retaliation claim any time it takes any adverse employment action against someone, particularly family members, “associated with” an employee who has engaged in protected activity.