Jan 26, 2011
The Roberts Supreme Court, markedly pro-business in many ways (as discussed in this recent New York Times article), has yet to meet a retaliation claim it doesn't like. This week, in Thompson v. North American Stainless, the Court found in favor of a man who claims he was fired because his fiance filed a sex discrimination claim against their mutual employer.
In previous terms, the Court has found that an employee may bring a retaliation claim under Section 1981 (a Reconstruction Era civil rights law that prohibits race discrimination in contracts) and that a federal employee may sue for retaliation under the Age Discrimination in Employment Act, despite any explicit mention of "retaliation" in either law. The court also found in favor of an employee who claimed she was fired after answering questions as a witness in an investigation of another employee's sexual harassment claim (my previous post about the Supreme Court case here; and the jury's subsequent $1.5 million award in the employee's favor here). And, the Roberts Court also decided Burlington Northern & Santa Fe Railway Co. v. White, which held that retaliation under Title VII encompasses any employer action that "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination."
This is the standard on which Justice Scalia relied in this week's case, Thompson v. North American Stainless. Eric Thompson met Miriam Regalado when she was hired by North American Stainless in 2000, where he already worked. The two began dating and got engaged, a fact that was known throughout the company. Regalado filed a charge of discrimination against the company, alleging that her supervisors had discriminated against her based on gender. The company was notified of the charge in early 2003; several weeks later, Thompson was fired. He sued the company for retaliation.
The federal Court of Appeals found that Thompson didn't have a valid claim, because it was his fiance who brought a charge of discrimination against the company. Thompson himself hadn't engaged in any "protected activity" under Title VII, and so had no basis for a lawsuit, even if the company fired him because of Regalado's EEOC charge.
The Supreme Court disagreed, finding that Thompson could sue for retaliation. Firing someone's fiance is clearly the type of action that could dissuade a reasonable employee from asserting her rights, as the Court found. The trickier part, however, is who has the right to sue for that harm. In this situation, Regalado had the discrimination claim -- and was the target of her employer's retaliation, presumably intended to get her to drop the case -- but Thompson is the one who lost his job. The Court found that the language of Title VII, which allows a "person aggrieved" by a statutory violation to sue, goes beyond only those who have themselves engaged in protected activity. Adopting a standard used in other cases, the Court decided that Thompson could sue because he fell within the "zone of interests" protected by Title VII. Because the company fired him intentionally, with the purpose of undermining the goals of the statute, he had a right to his day in court.
There has been a lot of discussion about whether this case will radically expand the number of retaliation charges (already at an all-time high -- and the most frequently filed charge at the EEOC in the past two years, surpassing even race discrimination charges). In other words, can a fired employee turn around and argue that he or she was fired because someone else at the company -- a manager or coworker -- filed a discrimination claim? Justice Scalia, who wrote the Thompson opinion, addressed this issue directly, saying that although "we acknowledge the force of this point," it justifies neither a blanket rule that bars all claims of third-party retaliation nor a rule that defines which third parties have a close enough relationship to the discrimination claimant to warrant a retaliation claim. So these issues will have to be decided case by case.