(Published in the New Hampshire Bar News, May 2011)
Retaliation claims under Title VII have been on the rise in recent years. The Equal Employment Opportunity Commission (EEOC) reported that in 2010 nationwide retaliation claims topped the list of discriminatory filings, surpassing the number of race discrimination claims for the first time. The United States Supreme Court’s recent decision in Thompson v. North American Stainless, LP broadens the protections of Title VII’s antiretaliation provision to include third parties who are in a “zone of interests” with an employee who has complained of discrimination. This phenomenon has been referred to colloquially as “associational discrimination.” The holding in Thompson is likely to further increase the number of retaliation claims being filed.
The plaintiff in the case, 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. Three weeks later, NAS fired Mr. Thompson. Mr. Thompson filed a charge of retaliation under Title VII with the EEOC. Efforts at conciliation proved unsuccessful, and Mr. Thompson brought a lawsuit claiming NAS had fired him in order to retaliate against Ms. Regalado for filing her charge with the EEOC.
The District Court granted NAS summary judgment, determining that Title VII does not include retaliation claims for third parties. 435 F.Supp.2d 633 (E.D.Ky. 2006). The Sixth Circuit Court of Appeals, after a panel reversed the District Court, affirmed, concluding that Mr. Thompson had not engaged in any statutorily protected activity and that he was not included in the class of persons for whom Congress created a retaliation cause of action. 567 F.3d 804 (2009). The United States Supreme Court granted certiorari.
Title VII, , 42 U.S.C. § 2000e-3(a), makes it unlawful for an employer to discriminate against 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).
In Thompson, it was undisputed that Ms. Regalado’s action in bringing the charge of discrimination was protected under Title VII. The issue before the Court was whether NAS’s firing of her fiancée constituted unlawful retaliation and, if it did, whether Title VII provides Mr. Thompson a cause of action. The Court answered both affirmatively.
In considering the first issue, the Supreme Court relied on a five year old decision in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006), wherein it held that the antiretaliation provision under Title VII covered a broad range of employer conduct, including conduct that extended beyond the terms and conditions of employment. 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.” Id. at 68 (internal quotation marks omitted). The Thompson Court noted that a reasonable worker might very well be dissuaded from complaining about discrimination if she knew her fiancée might be fired as a result.
NAS argued that broadening protections to third parties would create difficulties in determining what relationships are protected. “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?” The Court, while acknowledging the employer’s point, rejected a per se rule that third-party reprisals do not violate Title VII.
The Court advised that the antiretaliation provisions are “simply not reducible to a comprehensive set of clear rules.” Id. In other words, this is a case by case analysis. While not identifying a fixed class of protected relationships, 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.” Id. *4. It also confirmed that the standard is an objective one.
The Court further held that the term “aggrieved” in Title VII allows a plaintiff who falls within the so-called “zone of interests” sought to be protected by Title VII to bring suit. It found that Mr. Thompson was within the “zone of interests” 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 that hurting him was the unlawful act by which NAS punished Ms. Regalado for her protected activity of filing a discrimination complaint.
The decision is consistent with the position that has historically been taken by the EEOC on associational discrimination. In a concurring opinion, Justice Ginsburg, with whom Justice Breyer joined, reiterated the guidance offered in the EEOC’s Compliance Manual that Title VII “prohibit`s` retaliation against someone so closely related to or associated with the person exercising his or her statutory rights that it would discourage or prevent the person from pursuing those rights.” Id. *6.
Thompson follows a line of Supreme Court cases extending the protections for retaliation claims under Title VII. As noted above, in 2006, the Burlington Court found that an employer may retaliate against an employee by taking actions that do not directly relate to employment or by causing harm outside the workplace. In 2009, in Crawford v. Metropolitan Government of Nashville and Davidson County, the Court broadly defined the term “oppose” and extended the anti-retaliation provision to employees who disclose harassing or discriminatory conduct when answering questions during an employer’s internal investigation even though those individuals had not brought claims themselves. This decision now extends retaliation claims to third parties.
As previously stated, this decision is expected to continue the increase of retaliation claims brought against employers. Persons who fall within the “zone of interests” of the original complainant 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. It is the relationship with the original complainant that will now be a determining factor.
It should be noted that to reach its decision, the Court assumed that NAS fired the fiancé in retaliation against Ms. Regalado’s charge of discrimination. Id. *3. Thus, if it is determined on remand that NAS had already made the decision to terminate Mr. Thompson before learning of Ms. Regalado’s EEOC charge, his retaliation claim would fail.
Because the Supreme Court is expected to issue additional rulings in the employment arena this term, it is important for litigators to be mindful of the fact that this continues to be an evolving area of the law. After the Thompson decision, we are left with questions about where along the continuum prospective litigants might fall. Trial courts and employers are both left to sort out the question of who might fall within the “zone of interests.” Husbands, wives and fiancés are protected under facts that demonstrate that an employer punished them to retaliate against a party who engaged in protected activity. What about a best friend, a distant cousin, a new boyfriend, a close work associate who isn’t a personal friend? There are no clear answers.
Jennifer L. Parent and Charla B. Stevens are directors in the Litigation Department and Employment Law Practice Group of McLane, Graf, Raulerson & Middleton, P.A. Jennifer serves as chair of the Employment Law Practice Group and can be reached at 628-1360 or [email protected]