(Published in the New Hampshire Business Review, April 2011)
Mark, a human resources manager at the local department store, learns that a supervisor wants to terminate Paul, an employee in shipping and receiving, for chronic tardiness. Mark is aware that Paul’s sister, Jessica who is a cashier in the store, has recently filed a sexual harassment complaint against her supervisor. Should the company go forward with Paul’s termination or is doing so inviting a lawsuit from Paul claiming retaliation because of his relationship to Jessica?
On January 24, 2011, the United States Supreme Court in Thompson v. North American Stainless, LP, No. 09-291, extended the antiretaliation provision under Title VII to include third parties who are in a “zone of interest” with an employee who has complained of discrimination. The Thompson decision follows a line of recent Supreme Court cases extending protection to individuals bringing retaliation claims.
Retaliation claims under Title VII have been on the rise in recent years. The Equal Employment Opportunity Commission (“EEOC”) reported an all time high of 99,922 charges in 2010, with retaliation claims topping the list of discriminatory filings. This recent Supreme Court decision is expected to increase the number of retaliation claims being filed against employers.
In Thompson, Eric Thompson and his fiancée, Miriam Regalado, were both employees of North American Stainless (“NAS”). In February 2003, NAS received notice that Ms. Regalado had filed a charge of sex discrimination against the company. Mr. Thompson was fired by NAS three weeks later. Mr. Thompson then filed a charge of retaliation under Title VII with the EEOC. When efforts at resolution proved unsuccessful, Mr. Thompson brought a lawsuit claiming his employer had fired him in order to retaliate against Ms. Regalado for filing her charge with the EEOC.
Title VII, , 42 U.S.C. § 2000e-3(a), makes it unlawful for an employer to discriminate against any of its employees (1) because the employee has opposed any practice made an unlawful employment practice under Title VII, or (2) because the employee has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under Title VII. It further provides that “a civil action may be brought…by the person claiming to be aggrieved…by the alleged unlawful employment practice.” 42 U.S.C. § 2000e-5(b), (f)(1).
It was undisputed that Ms. Regalado’s sexual discrimination complaint was protected activity under Title VII. The question before the Court was whether NAS’s firing of her fiancée constituted unlawful retaliation and, if it did, whether Title VII provides Mr. Thompson as the fiancée a cause of action for retaliation. The Court answered both questions affirmatively.
The Court reiterated its 2006 holding in Burlington N. & S.F.R. Co. v. White. In that case, the Court found that the antiretaliation provision of Title VII is worded broadly and includes actions by the employer that extend beyond the terms and conditions of an employee’s employment or even outside the workplace. In other words, liability for retaliation extends to an employer’s conduct that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” In the instant case, the Court determined that a reasonable worker might be dissuaded from complaining of discrimination if she knew her fiancée would be fired and therefore the employer’s action in terminating Mr. Thompson constituted unlawful retaliation.
NAS had argued to the Court that broadening protections to third parties would create difficulties in determining what relationships are protected in the workplace. “Perhaps retaliating against an employee by firing his fiancée would dissuade the employee from engaging in protected activity, but what about firing an employee’s girlfriend, close friend, or trusted co-worker?” While acknowledging the employer’s point, the Court rejected this argument.
Instead, the Court provided some guidance on the topic. “We expect that firing a close family member will almost always meet the Burlington standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize.” This will be a case-by-case determination based on the third party’s relationship to the original complainant.
The Court then held that a third party can bring a retaliation claim if that person is “aggrieved” under Title VII. The Court decided that Mr. Thompson was so “aggrieved” because he fell within the “zone of interests” protected by Title VII as he was an employee of NAS and the purpose of Title VII is to protect employees from unlawful actions by their employers. The Court further noted that Mr. Thompson was not an “accidental victim” and hurting him was the unlawful act by which NAS punished the original complainant, Ms. Regalado, for her discrimination complaint.
The Thompson decision is expected to continue the increase of retaliation claims that are being brought against employers. Third parties who fall within the “zone of interest” of an employee who claims discrimination may now bring a claim of retaliation even if they had nothing to do with the original discrimination claim or they themselves did not engage in any protected activity. There are lots of shades of gray as to where along the continuum individuals will fall in the workplace. Are employees who are good friends on the job but do not socialize outside of work covered? What about the employees who have been dating for only a few days or weeks or months? Trial courts and employers are left to sort this out.
Here, Mark should be mindful of a potential retaliation claim by Paul because he is in the “zone of interests” to his sister. Before making employment decisions about an employee, employers should be careful to inquire into any relationship between that employee and an employee who has brought a discriminatory claim. In the above example, the company needs to look into the reasons for Paul’s proposed termination and to investigate whether the supervisor’s proposed termination is done to retaliate against Paul’s sister for her sexual discrimination complaint.
Jennifer L. Parent, a director in the Litigation Department and Chair of the Employment Law Practice Group of McLane, Graf, Raulerson & Middleton, P.A., can be reached at 628-1360 or [email protected]. Please note that this column provides general legal information, not legal advice. We recommend that you consult a lawyer for guidance specific to your particular situation.