Articles - General HR

Under Title VII, an employee is protected against retaliation if the employee opposes his or her employer's discriminatory employment practice; files a charge of discrimination; or testifies, assists or participates in an investigation, proceeding or hearing relating to a discrimination charge. On Jan. 24, 2011, in Thompson v. North American Stainless LP, No. 09-291 (U.S. Jan. 24, 2011), the United States Supreme Court held that Title VII's anti-retaliation protections extend to a person closely connected to another employee who has claimed discrimination against his or her employer, even if the person has not engaged personally in activity protected under the statute.

In Thompson, the plaintiff's fiancée filed a charge of sex discrimination with the Equal Employment Opportunity Commission against their common employer. Three weeks following notice of the charge, the employer terminated the plaintiff for poor performance. The plaintiff brought a Title VII claim, alleging that his employer fired him solely in retaliation for his fiancée's charge of discrimination. However, he did not allege that he had opposed discrimination on his own or that he had participated in his fiancée's charge of discrimination in any way.

The trial court granted summary judgment for the employer, ruling that Title VII does not allow third- party retaliation claims. The United States Court of Appeals for the Sixth Circuit agreed, holding that Title VII limited retaliation claims to individuals who actually engage in protected activity either on the individual's own behalf or on behalf of another. The Sixth Circuit reasoned that a close relationship with the employee claiming discrimination is not sufficient to support a third-party retaliation claim absent personal participation in protected activity. Thus, because the plaintiff in Thompson did not engage in any protected activity, either on his own or on behalf of his fiancée, he was not included in the class of persons protected under Title VII.

In a unanimous decision, the Supreme Court reversed. Applying the standard developed in its prior landmark ruling in Burlington Northern & Santa Fe Railway v. White, 548 U.S. 53 (2006), which broadened the definition of retaliation to prohibit employer act

As for "the more difficult question" of whether the plaintiff may bring a retaliation claim against his employer, the court found no basis in the statute or the court's prior rulings to limit retaliation claims to the person who engaged in the protected activity. Rather, Title VII conferred a right to any person with an interest "arguably [sought] to be protected" under the statute, while excluding those persons with interests "unrelated to the statutory prohibitions."s that might "dissuade" an employee from bringing or supporting a discrimination claim, the court found it "obvious" that an employee might be dissuaded from filing a charge of discrimination if the employee knew that her soon-to-be spouse would be fired.

Because hurting the plaintiff was the unlawful act by which the employer punished the plaintiff's fiancée, the plaintiff fell "well within the zone of interests sought to be protected by Title VII." Accordingly, the plaintiff had standing to bring his retaliation claim.

In reaching its decision, the Supreme Court acknowledged the employer’s valid concern that outlawing third-party retaliation will lead to difficult line-drawing problems as to the type of relationships entitled to protection. While recognizing that such third-party claims would likely place employers “at risk” any time they fire an employee connected in some way to an employee complaining of discrimination, the court nonetheless found that third-party reprisals may violate Title VII.

Disappointingly, the Supreme Court did not provide much guidance about what relationships are sufficient to trigger third-party retaliation claims. Without drawing any clear lines or identifying a fixed class of relationships in which third-party reprisals are unlawful, the court noted that “firing a close family member will almost always meet the Burlington standards, and inflicting a milder reprisal on a mere acquaintance will almost never do so.”

Everything in between will ultimately depend upon an objective standard for judging the harm to the employee based on the particular circumstances of the case.

By extending Title VII protections to a family member, close associate or significant other of a discrimination-complaining employee, regardless of whether that person actually engaged in protected activity, the Supreme Court’s decision in Thompson expands the class of individuals protected by the statute’s anti-retaliation provisions.

From a practical standpoint, this likely means an increase in the number of retaliation charges filed by employees who happen to be connected with a complaining employee. As a result, employers must carefully consider their employees’ private lives and their social relationships before taking any type of adverse employment action. 

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Biography

Chad W. Moeller represents corporations and not-for-profit organizations of all sizes in employment matters in federal and state court litigation, including in non-competition, trade secrets, employment discrimination, wage and hour, and contract matters. Chad counsels employers on preparing non-competition agreements and executing “lift-outs” of competitors’ employees in a lawful manner. Chad also advises employers on a daily basis how to avoid, address and/or remediate employee relations issues.

If you have any questions regarding this Alert, please contact Neal Gerber Eisenberg Labor & Employment Practice Group partner Chad W. Moeller (cmoeller@ngelaw.com, 312-269-5370).

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