Updating our previous posts on Thompson v. North American Stainless, the Supreme Court yesterday reversed the Sixth Circuit’s en banc decision holding that an employee who claims he was fired in retaliation for his fiancé’s complaint of sex harassment had an actionable retaliation claim under Title VII. The Supreme Court reversed the Sixth Circuit’s decision in a 8-0 opinion with Justice Scalia writing the unanimous decision.
The facts are as follows: A woman filed a sex discrimination charge with the EEOC. Three weeks later, the employer terminated the woman’s fiancé, who also was employed by the company. The fiancé filed his own EEOC charge and, eventually, a lawsuit, alleging that his termination was in retaliation for his fiancé’s EEOC charge. In response, the employer argued, among other things, that there is no cause of action under Title VII for retaliation against associated third-parties. The trial court agreed and dismissed the case. The plaintiff appealed, and the EEOC filed an amicus (“friend of the court”) brief in support of associational retaliation claims. In a 2-1 decision, a three-judge panel of the Sixth Circuit reversed, holding that “Title VII prohibit[s] employers from taking retaliatory action against employees not directly involved in protected activity but who are so closely related to or associated with those who are directly involved, that it is clear that the protected activity motivated the employer’s action.” The entire Sixth Circuit (en banc) reversed the three-judge panel holding in a close 10-6 vote that there was no cause of action for third-party or associational retaliation.
Yesterday, the Supreme Court reversed the Sixth Circuit’s en banc decision, agreeing with the plaintiff that Title VII’s provisions prohibiting retaliation were broad enough to include associated third-parties. The Supreme Court reasoned that Title VII’s anti-retaliation provisions were intended to protect against any employer action that may dissuade a reasonable worker from making or supporting a charge of discrimination—specifically emphasizing that this is an objective standard. The Court reasoned that it was “obvious” that a worker might be dissuaded from making or supporting a complaint of discrimination if she knew that her fiancé might be terminated as a result. The Court reasoned that hurting the fiancé was the means by which the employer intended to harm the female employee making the complaint of discrimination. The Court warned that retaliation against a mere acquaintance would not meet this standard but declined to identify specific relationships that would and would not be covered—holding that outside of close family relationships it would depend on the circumstances of each case to determine whether the plaintiff was in the "zone of interest."
Retaliation claims have long been a thorn in the side of employers, who too often make the mistake of transforming a meritless discrimination claim into a viable retaliation claim by the way they treat an employee who remains in their employ after complaining of discrimination. The Supreme Court’s 2006 decision in Burlington Northern & Santa Fe Ry. Co. v. White made it easier for employees to prove retaliation and yesterday’s decision in Thompson expands the list of potential retaliation claimants. With retaliation claims already on the rise as demonstrated by the EEOC’s recent statistics, it is more important than ever that employers thoroughly and impartially evaluate any disciplinary scenario before taking adverse action to ensure that the discipline is free of any retaliatory motivation.