It's Not What You Know…Retaliation By Association Under Title VII
Although Title VII’s anti-retaliation protections normally apply to employees who have engaged in a protected activity, a recent U.S. Supreme Court case has expanded those protections to include employees with a “relationship” to someone who has engaged in a protected activity. The United States Supreme Court has expanded the number of employees who can bring claims of retaliation under Title VII of the Civil Rights Act of 1964 to include employees with a “relationship” with someone who has engaged in protected activity. In Thompson v. North American Stainless, Eric Thompson and Miriam Regalado were both employees of North American Stainless (NAS), and they were engaged to be married. In February 2003, Regalado filed a charge of sex discrimination against NAS. Three weeks later, NAS fired Thompson, Regalado’s betrothed.
Thompson then filed a charge with the EEOC, contending that NAS had fired him in order to retaliate against Regalado for filing her sex discrimination charge. A federal district court in Kentucky granted summary judgment to NAS and dismissed Thompson’s retaliation claim. The United States Court of Appeals for the Sixth Circuit upheld the dismissal, holding that Thompson had not engaged in any statutorily-protected activity, either on his own behalf or on behalf of his fiancé, and thus was not included within the class of persons for whom Congress created a cause of action for retaliation.
In considering the Supreme Court’s decision, we need to keep in mind the context in which it was presented to the Court. When a district court considers a motion for summary judgment, it has to first find that the material facts in the case are not in dispute. In this case, the District Court had to assume that NAS indeed fired Thompson in order to retaliate against Regalado for filing her sex discrimination charge. With that background in mind, the Supreme Court was called upon to decide two questions: First, did NAS’ firing of Thompson constitute unlawful retaliation? Secondly, if it did, does Title VII grant Thompson a cause of action?
With regard to the first question, the Supreme Court had little trouble in deciding that firing Thompson in retaliation against Regalado for filing a charge of discrimination did indeed constitute unlawful retaliation under Title VII. The Court concluded that Title VII’s provision prohibits any employer action that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” It was thus “obvious” to the Court that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired. Notably, the Court specifically declined to identify a fixed class of relationships for which third party reprisals could be unlawful. The Court stated that although the firing of a close family member would almost always meet the standard, a “milder” reprisal on a mere acquaintance would almost never do so. The Court did not set forth any bright line as to the types of relationships which may be covered by the anti-retaliation provisions.
The more difficult question for the Court was whether Thompson himself could sue NAS for retaliating against him. Once again, the court referred to Title VII, which provides that a “civil action may be brought… by the person claiming to aggrieved.” In order to avoid absurd results, the court held that a plaintiff could not successfully sue unless he or she fell within a “zone of interests” sought to be protected by the statutory provision. Applying that test to this case, the court held that Thompson most certainly fell within the zone of interest protected by Title VII since he was an employee of NAS and thereby entitled to be protected from his employer’s unlawful actions. Secondly, since the court had to accept the fact that NAS had indeed fired Thompson in order to harm Regalado, the unlawful act engaged in by NAS was easily established.
Normally, in order to successfully state a claim of retaliation, the plaintiff must establish some connection between the protected activity and the retaliatory act. Proximity in time between the two events is an important component of retaliation case. In Thompson v. North American Stainless, those elements had to be assumed as true since, again, the case was presented to the Court for dismissal under a motion for summary judgment. There was no evidence presented to suggest that Thompson had engaged in any personal conduct or behavior which led to his termination. If, for example, Thompson had violated an NAS policy for which he had been given progressive discipline, this case might have had an entirely different outcome.
The number of retaliation cases filed continues to grow. The Supreme Court’s decision here will likely lead to the filing of even more retaliation claims by boyfriends, girlfriends, “best” friends, etc. As with any termination or discipline case, the maintenance of records and documentation is critical to a successful defense. Most certainly, terminating or disciplining an employee who has done nothing other than have some relationship with another employee who has filed a charge, testified, or otherwise engaged in protected activity to which the employer objects is probably unlawful and potentially expensive. The importance of being able to prove that discipline was warranted and justifiable cannot be understated.
