ONCE AGAIN THE SCOPE OF RETALIATION IS BROADENED BY A UNANIMOUS SUPREME COURT
by Tiffanie C. Benfer, Esquire
On January 24, 2011, a unanimous Supreme Court (with the exception of Justice Kang who took no part in the consideration or decision) held that Title VII creates a cause of action for a third party who themselves did not engage in protective activity but were the subject of employer’s retaliation. Thompson v. North American Stainless, LP, 562 U.S. _____ (2011). This employee-friendly decision by this conservative court should not come as a complete surprise given the Court’s 2006 unanimous decision in Burlington Northern & Santa Fe v. White, 126 S.Ct. 2405 ( 2006).
In 2006, the Supreme Court, in Burlington, expanded the scope of acts committed by employers that would be considered retaliation under Title VII. The Court recognized “an employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace” and concluded that Title VII’s anti-retaliation provision prohibits any employer action that might dissuade a reasonable employee from making or supporting a charge of discrimination.
In Thompson, the Plaintiff’s fiancée filed a sex discrimination charge with the Equal Employment Opportunity Commission against her employer North American Stainless who happened to also be the Plaintiff’s employer. Three weeks later, the Plaintiff was terminated. Plaintiff brought a third-party retaliation claim against the employer. Plaintiff asserted that a reasonable employee would be dissuaded from engaging in protected activity if the employee knew that his/her fiancée would be fired.
The employer expressed that applying the broad standard set forth in Burlington would place the employer at risk any time it fires any employee who happened to have any a connection to another employee who filed a charge of discrimination.
Despite the Defendant’s legitimate concerns, the Court maintained that Title VII’s anti-retaliation provision is broadly written and, therefore, includes third party reprisals. The Court recognized the challenges this broad interpretation creates for employers but refused to draw a line in the sand and set forth what relationships shall be entitled to protection. However, the Court was willing to say “that firing a close family member will almost always meet the broad standard set forth in Burlington.” The Court reiterated particular circumstances in each matter will determine whether an employer’s actions constitute retaliation. In the end, the Court had “little difficulty concluding” that if the facts alleged by the Plaintiff are true, then his termination was a violation of Title VII.
The Court faced a more difficult question, did Thompson, in his own right, have a Title VII retaliation claim. The statute states that a “civil action may be brought . . . by the person claiming to be aggrieved.” 42 U.S.C. 2000e-5(f)(1). The Court held that the term “aggrieved” in Title VII incorporates the “zone of interest” which allows suit by any Plaintiff with an interest who seeks protections by the statute. The purpose to Title VII is to protect employees from their employers’ unlawful actions.
The Supreme Court concluded that the Plaintiff fell within the “zone of interest” protected by Title VII. More specifically, the Plaintiff was an employee of North American Stainless, and he was injured by North American Stainless unlawful actions when the company terminated him as means of harming his fiancée who had brought sex discrimination charges against the employer. The Company’s actions towards the Plaintiff constituted retaliation under the broad standard set forth in Burlington. Thus, the Court concluded that the Plaintiff had standing in his own right to bring a Title VII claim against the employer.
Whether you are an employer or an employee, this decision concerns you. To minimize the risk of a retaliation claim, an employer must be more vigilant as to its own and its managers’ actions after an employee makes or supports a claim of discrimination or sexual harassment to avoid a possible claim of retaliation. It is important that an employer is cognizant of the fact that its actions towards a third-party employee with a relationship with the employee exercising his/her rights under Title VII can create a separate cause of action.
Despite the added challenges created by this recent decision, one must keep in mind that the objective of Title VII is to create a workplace where an employee is not only free of unlawful discrimination, but also one in which employees feel free to “secure or advance” their right not to be discriminated against. In order to achieve this objective, third-party retaliation claims are necessary. The Court recognized the necessity to adopt a broad standard for Title VII retaliation claims.