Supreme Court Expands Retaliation Protection

Last year, employees filed more retaliation claims with the Equal Employment Opportunity Commission (EEOC) than any other type of charge--the first time retaliation has held the top spot among workplace discrimination claims. It's a trend that's likely to accelerate in the wake of the Supreme Court's Jan. 24 decision in Thompson v. North American Stainless.

In that unanimous decision, the court held that an employee who was fired shortly after his fianc?e filed a discrimination claim may sue under Title VII for third-party retaliation. The court thereby expanded the potential universe of people filing retaliation claims to include not only employees who engage in protected activity under Title VII, but also everyone with a close association to someone who is protected.

Fianc? Fired

The latest beneficiary of the Supreme Court's sympathy is Eric Thompson. He and his fianc?e, Miriam Regalado, both worked for North American Stainless LP (NAS). Three weeks after Regalado filed a sex discrimination charge with the EEOC, the company fired Thompson. Thompson filed suit, claiming NAS fired him to retaliate against Regalado for filing her discrimination charge.

Another Lifeboat

In his decision, Scalia chose not to be bound by the retaliation language of Title VII, which protects an employee from punishment "because he has opposed" an illegal employment practice or "he has made a charge" alleging such illegal activity (emphasis added). Michael Fox, a shareholder at Ogletree Deakins, points out that Congress did not say "he or someone he is close to." In contrast, the Americans with Disabilities Act (ADA) specifically provides protection to people associated with disabled employees.

Checklist Addition

For employers, North American Stainless means adding another factor to the checklist of what to consider before subjecting an employee to an adverse employment action.

Senior Editor

Mary Swanton

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