Labor and Employment Law Weekly Update (Week of January 31, 2011)
In an 8-0 decision last week, the U.S. Supreme Court expanded the law on unlawful retaliation when it handed down its decision in Thompson v. North American Stainless, LP (http://tinyurl.com/4p5mu8z).
The facts of this case were straightforward. Eric Thompson and his fiancée, Miriam Regalado, were employees of North American Stainless (NAS). In February 2003, the EEOC notified NAS that Ms. Regalado had filed a charge alleging sex discrimination. Three weeks later, NAS fired her fiancé, Mr. Thompson, who then filed his own charge with the EEOC claiming that that NAS had fired him in retaliation for Ms. Regalado's filing with the EEOC. The trial court dismissed Mr. Thompson's suit.
In deciding the case, the Supreme Court addressed two questions: First, did NAS's firing of Mr. Thompson constitute unlawful retaliation? Second, if it did, does Title VII grant Mr. Thompson a cause of action? As to the first question, the Court quickly concluded that firing an employee for filing an EEOC charge would tend to dissuade employees from filing such charges if employees knew their employer might react by firing them. The court found the second question required more analysis. In order to have a claim under Title VII, a person must be "aggrieved" to bring a charge or lawsuit. While there is no question Ms. Regalado — who believed she was the victim of sex discrimination — was aggrieved, the tougher issue for the court was to determine if Mr. Thompson — who never alleged to be the direct victim of any discrimination — was aggrieved.
Justice Antonin Scalia (http://tinyurl.com/2flpnec), who authored the majority opinion, wrote, "Thompson was not an accidental victim of retaliation ... to the contrary, injuring him was the employer's intended means of harming Regalado. Hurting him was the unlawful act by which the employer punished her." Thus, the Court recognized that third-party claims of retaliation might be brought against employers.
This decision, handed-down by what is regarded by many as a conservative, pro-employer court, continues the trend of the Supreme Court not hesitating to enforce the anti-retaliation provisions of laws protecting employee rights. In 2009, in another unanimous decision (http://tinyurl.com/4lwo75j), the Court held Title VII's anti-retaliation provisions protect employees from being fired for cooperating with an employer's internal sexual harassment investigation.
The Thompson decision leaves many unanswered questions for employers, such as how close to the original aggrieved employee will the anti-retaliation provisions extend? The Court said "firing a close family member will almost always meet the standard" but failed to define the outer boundary. The Court's decision will likely continue to fuel the recent trend of escalating numbers of retaliation claims being brought against employers. Last year, for the first time ever, the EEOC reported (http://tinyurl.com/46fy49p) that retaliation under all of the statutes it enforces surpassed race as the most frequently filed charge. Employers would be well served to act cautiously when taking adverse action against any employee who has complained of a legal violation or is related in some manner to one who has.
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