Supreme Court okays third-party-retaliation claims

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The United States Supreme Court today in Thompson v. North American Stainless, LP ruled that an employer violates Title VII of the Civil Rights Act if it takes action against an employee who is in the same “zone of interest” as another employee who files a Charge of Discrimination with the United States Equal Employment Opportunity Commission.

More on this important decision and the immediate impact that it will have on employers after the jump.

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Until 2003, both Eric Thompson and his fiancé, Miriam Regalado, were employees of North American Stainless (NAS). In February 2003, the EEOC notified NAS that Regalado had filed a charge alleging sex discrimination. Three weeks later, NAS fired Thompson. Thompson then sued NAS claiming that the company retaliated against him under Title VII.

Before this action, the Supreme Court had previously held in Burlington N. & S. F. R. Co. v. White that Title VII’s anti-retaliation vision prohibits any employer action that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Based on this standard, the Thompson Court thought it “obvious” that “a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.” However, the Court stopped short of creating a bright-line rule to define who may be in the harassment victim’s “zone of interest.”

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. 

We must also decline to identify a fixed class of relationships for which third-party reprisals are unlawful…Title VII’s antiretaliation provision is simply not reducible to a comprehensive set of clear rules. 

This case has an immediate impact on employers. Although, unfortunately, it is unclear where to draw the line to establish when an employer retaliates against an alleged harassment victim’s co-worker. The Supreme Court expected that firing a “close family member will almost always” constitute retaliation and “inflicting a milder reprisal on a mere acquaintance will almost never do so.” In the end, it all boils down to: what would constitute retaliation to a reasonable person?

Good question. That will be for the lower courts to flesh out.

One BIG point to underscore here. Employees who complain about harassment in the workplace and those who are in the alleged victim’s “zone of interest” are NOT bulletproof. In Thompson, the Supreme Court assumed that NAS fired Thompson because his fiancé complained to the EEOC. If, however, NAS had made the decision to fire Eric Thompson before it learned of his fiancé’s EEOC charge — for example, Mr. Thompson may have been a poor performer — NAS can still follow through and fire him. An employer is free to fire an employee for a legitimate business reason.