Labor: Third Party Retaliation Claims

Earlier this month, the U.S. Supreme Court heard oral arguments in Thompson v. North American Stainless, which could significantly alter the scope of protection against workplace retaliation under Title VII of the Civil Rights Act. Specifically, the Thompson case presented the following question to the Court: Does Title VII's anti-retaliation provision prohibit an employer from retaliating against a third party (e.g., a spouse, family member, or fianc?e) who is closely associated with an employee who complains of discrimination even though the third party personally has not engaged in protected activity?

Three years after Eric Thompson began working at North American Stainless, Miriam Regalado became employed there as well. Thompson and Regalado began dating, eventually became engaged and, later, married. In September 2002, while engaged to Thompson, Regalado filed a charge of discrimination against the company with the Equal Employment Opportunity Commission (EEOC), alleging gender discrimination. On February 13, 2003, the EEOC advised North America Stainless of Regalado's charge. Less than a month later, on March 7, 2004, Thompson was terminated by the company. Thompson claimed North American Stainless terminated him in retaliation for his then-fianc?e's pending charge of discrimination. The company contended that the termination was due to Thompson's on-going performance issues.

Thompson ultimately sued North American Stainless in the U.S. District Court for the Eastern District of Kentucky, arguing wrongful termination under Title VII. The district court granted the company's motion for summary judgment, finding that Title VII does not permit a claim of retaliation by a third-party. The U.S. Court of Appeals for the 6th Circuit, in an en banc ruling, agreed. The 6th Circuit specifically held that only those who personally engaged in protected activity are protected from retaliation by the employer.

In June 2010, the U.S. Supreme Court granted certiorari and oral arguments were held on December 7, 2010. During the oral arguments, Thompson's counsel argued that he was terminated for an illegal purpose, namely in retaliation for his then-fianc?e filing a charge of discrimination. Although there was no evidence that Thompson personally engaged in protected activity, his attorney argued the termination was an act to "punish" Regalado for filing a charge.

Several members of the Court appeared to struggle with Thompson's argument. Justice Alito questioned what would be considered a "close relationship" for purposes of this extension of the anti-retaliation provision: "Does it include somebody who just has lunch in a cafeteria every day with the person who engaged in the protected conduct? Somebody who once dated the person who engaged in the protected conduct?" Chief Justice Roberts also asked how an employer is supposed to determine if the third party is "close enough" to the individual who engaged in protected activity. Justice Scalia inquired as to whether it could be limited to members of a family or fianc?es, avoiding having a jury decide if the person was "close enough" to be protected against retaliation.

In addition to the challenge of determining if the third party was "close enough" to the person who engaged in protected activity, several Justices wrestled with the potential obligations that would be imposed upon an employer prior to taking any type of adverse action against an employee. As Justice Alito noted, extending this statutory protection would require an employer to examine all of its employees' relationships and determine if they have a "close relationship" with any person who engaged in protected activity before taking adverse action even if the employer believes it has "good grounds" for taking such action.

Understandably, employers are concerned about the potential implications of the Thompson case. However, based on the questions posed by the Court, together with its more conservative make-up, many believe the Supreme Court will rule in favor of North American Stainless but possibly providing a narrow exception for family members or engaged employees. That said, the Thompson case does serve as a reminder for employers to examine their policies (e.g., narrowly tailored non-fraternization policies and complaint procedures for claims of discrimination, harassment or retaliation). Employers also should conduct updated training for supervisors and managers regarding the process in which disciplinary actions, including terminations, should be evaluated and implemented.

Tina A. Syring-Petrocchi is a partner in Barnes & Thornburg LLP's Minneapolis office and a member of the firm's Labor and Employment Law Department.

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