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Employment Update

The Ever Expanding Net of Title VII Retaliation Liability
January 31, 2011

Stretching the protections of the anti-retaliation provision to what may be the outer bounds of Title VII, the Supreme Court recently held that a plaintiff terminated three weeks after his fiancée filed a Charge of Discrimination against their same employer could sustain his own claim for retaliation. 

Summary: Under Title VII, employers are prohibited from retaliating against employees for engaging in protected conduct such as complaining about discriminatory treatment.  The issues in Thompson v. North American Stainless, LP, No. 09-291, were whether the employer's firing of the non-complaining plaintiff constituted unlawful retaliation, and whether Title VII permitted the plaintiff's third-party cause of action.  In an 8-0 decision, the Supreme Court responded yes to both questions.

In Thompson, the plaintiff and his fiancée were employees of North American Stainless.  In February 2003, the EEOC notified the employer that the fiancée filed a Charge alleging sex discrimination, and three weeks later, the defendant fired the plaintiff.  The plaintiff filed a Charge on the basis of retaliation and sued in federal district court.  The case was eventually appealed to Supreme Court.

Finding in favor of the plaintiff, the Supreme Court relied upon the text of Title's VII anti-retaliation provision and its 2006 opinion, Burlington v. White, 548 U.S. 53 (2006), where the Supreme Court held that courts must construe Title VII's anti-retaliation provision to cover a broad range of employer conduct that "might have dissuaded a reasonable worker from making or supporting a charge of discrimination." 

The Court noted that it had little difficulty concluding that the defendant's firing of the plaintiff violated Title VII (taking all of the plaintiff's allegations as true).  The Court also noted that it "was obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancée would be fired." 

Whether the non-complaining plaintiff was permitted to sue under Title VII, however, was the more difficult issue for the Court.  The Court borrowed its reasoning from an Administrative Procedure Act claim in Lujan v. National Wildlife Federation, 497 U.S. 871, 883 (1990), where it held that a plaintiff was permitted to sue if he "falls within the 'zone of interests' sought to be protected by the statutory provision whose violation forms the basis for his complaint." 

Applying that test to the facts in Thompson, the Court held that the plaintiff fell within the "zone of interests" protected by Title VII because the plaintiff was an employee and the very purpose of Title VII was to protect employees from unlawful actions by their employers.  At the end of its decision, the Court observed that the plaintiff was not an "accidental victim of retaliation," because "injuring him was the employer's intended means of harming [the fiancée]."  The employer's intent, therefore, placed the plaintiff well within the "zone of interests" protected by Title VII according to the Court.

Lesson:  Since the 2006 Burlington decision, retaliation charges have increased by 60%.  The Thompson case ensures this trend will continue.

The Thompson v. North American Stainless, LP decision also demonstrates the Supreme Court's continuing expansion of retaliation claims under Title VII.  This expansion now creates an issue for employers seeking to understand what relationships are entitled to protection under the anti-retaliation clause.  Indeed, the Supreme Court acknowledged the difficulties employers may have in determining whether such protection extends to a close friend or a girlfriend for example, but the Court ultimately rejected this problem in favor of a broad reading of Title VII's anti-retaliation provision.  The Supreme Court sought to provide some measure of guidance by explaining that the firing of a close family member will almost always constitute retaliation, while inflicting a milder reprisal on a mere acquaintance will almost never do so. 

The decision reminds employers to remain vigilant in ensuring that their managers are disciplining all employees in a non-discriminatory fashion, and that there are sufficient and documented grounds for discipline.

For more information, please contact a member of Moore & Van Allen's Employment & Labor Practice Group.

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