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By Bradley Adler
In an opinion released on January 24, 2011, the Supreme Court held that third parties may have a cause of action for retaliation under Title VII if they suffer an adverse employment action due to their connection with a person who has filed an EEOC Charge. Thompson v. N. Am. Stainless, LP, 09-291, 2011 WL 197638 (U.S. Jan. 24, 2011).
In this case, an employee, Miriam Regaldo, filed a charge of discrimination against her employer alleging sex discrimination. Less than a month later, Ms. Regaldo’s fiancé, Eric Thompson, was terminated. Mr. Thompson filed an EEOC Charge alleging that he was fired in order to retaliate against Ms. Regaldo for filing her EEOC Charge. The Sixth Circuit Court of Appeals dismissed the case because Mr. Thompson did not himself “engage in any statutorily protected activity” and sought protection under Title VII solely based on his close association with his fiancé.
The Supreme Court of the United States, in an opinion authored by Justice Scalia, disagreed with the Sixth Circuit and found that Thompson was protected from retaliation based on his association with someone who had engaged in protected activity. The Court, relying upon its increasingly broad interpretation of the retaliation provisions of Title VII under Burlington Northern v. White, concluded that taking an adverse employment action against a close relative of someone who had engaged in protected activity would have the effect of dissuading reasonable workers from engaging in protected activity. In this case, for instance, the Court noted it had “little difficulty” in concluding that a reasonable worker would be dissuaded from filing an EEOC Charge if he or she knew that their fiancé would be fired.
In ruling, the Supreme Court addressed the main concern with affording a fiancé protection under Title VII. The company argued that allowing a fiancé to sue would open the floodgates to retaliation lawsuits from everyone with any connection to a complaining employee. The Court stated, however, that “we do not think [this concern] justifies a categorical rule that third-party reprisals do not violate Title VII.”
Interestingly, the Court declined to identify a fixed class of relationships for which third-party retaliatory acts are unlawful. Instead, the Court stated that it will “depend on the particular circumstances” and further elaborated that “firing a close family member will almost always meet the standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so.”
While this ruling is not particularly surprising, the Supreme Court’s refusal to define a class of third parties who may sue under this theory is curious. The Court’s ambiguous comment about the level of relationship and the type of employment action required to create a cause of action leaves employers in a realm of unknown. While it seems clear that typical low-level disciplinary actions (such as a written warning) of a friend probably will not be enough to support a retaliation claim, it is uncertain how courts will rule if, for instance, a mere acquaintance is terminated. This void will have to be filled by Court decisions in the future.
In any event, this case serves as a good reminder that employers must remain cognizant of the actions they take once an employee has engaged in protected activity. As with any other disciplinary decision, employers should carefully evaluate whether the action they are going to take, whether against an employee who has filed an EEOC Charge or a close relative of that person, is consistent with their typical disciplinary protocol.