Periodic Employment Law Update - Fifth Edition

SUPREME COURT OF UNITED STATES ALLOWS THIRD PARTY RETALIATION CLAIMS UNDER TITLE VII

Description of Third Party Retaliation Claims

A third party retaliation claim occurs when an employee engages in protected activity, such as complaining that he or she was unlawfully discriminated against under Title VII, and the employer retaliates by taking an adverse employment action against a coworker or third party instead of the employee who engaged in the protected activity.

United States Supreme Court Addresses Third Party Retaliation Claims

In the Supreme Court case of Thompson v. North American Stainless, LP, 131 S.Ct. 863 (2011), the employee/plaintiff, Eric Thompson, sued his former employer under Title VII’s anti-retaliation provision.  Thompson alleged that his former employer violated Title VII’s anti-retaliation provision by terminating him three weeks after receiving notice that his fiancé, who worked for the same employer, filed a charge of gender discrimination with the Equal Employment Opportunity Commission (“EEOC”).  The district court entered summary judgment in the employer’s favor and ruled that Title VII does not recognize third party retaliation claims, and the U.S. Court of Appeals for the Sixth Circuit (Kentucky, Michigan, Ohio and Tennessee) affirmed the decision before it was appealed to the Supreme Court.

The Supreme Court reversed the decision by holding that Title VII’s anti-retaliation provision extends to third party claims.  The Supreme Court reasoned that firing an employee’s fiancé could dissuade a reasonable employee from making or supporting a charge of discrimination and is therefore prohibited by the anti-retaliation provision of Title VII.  The Supreme Court further stated that firing an employee’s close relative because the employee engaged in activity protected by Title VII will “almost always” constitute unlawful retaliation, whereas “inflicting a milder reprisal on a mere acquaintance will almost never do so.”  However, the Supreme Court refused to identify a fixed class of relationships for which third party reprisals are unlawful, and stated that each case must be decided based on its own particular circumstances.  The Supreme Court also determined that the fiancé in Thompson had standing to bring a cause of action for his termination under Title VII because he fell within the “zone of interests” sought to be protected by Title VII’s anti-retaliation provision.  The Supreme Court held that the “zone of interests” test is used to determine if a party is “aggrieved” under Title VII, and this test enables suit by any plaintiff with any interest “arguably [sought] to be protected by the statutes.”

Practical Significance in EPL Claims Handling

The ruling in Thompson will likely increase the number of third party retaliation claims under Title VII nationwide because plaintiffs’ attorneys will argue for a broad interpretation of the decision to include potentially all relatives, friends, spouses, fiancés, girlfriends or boyfriends who suffer adverse employment actions after the employee engages in protected activity.  The major concern for employers is that they are at risk whenever they take an adverse employment action against an employee who has a close connection or relationship with a different employee who filed a charge of discrimination with the EEOC or otherwise engaged in protected activity.  Employers should consider whether the decision maker has knowledge of any connection or close relationship before the adverse employment action is carried out against the third party.  Employers should also ensure that any adverse employment action is supported by a legitimate, non-retaliatory reason that is well documented.

For further assistance or questions, please contact:

• Barry Postman email: barry.postman@csklegal.com; 561-383-9234
• Brian Rubenstein email: brian.rubenstein@csklegal.com; 813-864-9324

Partners in Cole, Scott & Kissane, P.A.’s Employment Law Group.