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Labor: Was it retaliation?

What employers need to know in the wake of the Supreme Court’s Thompson decision

Earlier this year, the U.S. Supreme Court decided the case of Thompson v. North American Stainless. In a unanimous decision (Justice Elena Kagan recusing herself), the court held that Title VII’s anti-retaliation provision applied to an employee who was terminated after his fiancée filed a complaint against the company.

This decision has since changed the employment landscape of retaliation cases, and employers need to be aware of its impact and the impact of post-Thompson cases.

Background

North American Stainless (Stainless) fired Miriam Regalado. Regalado later filed an Equal Employment Opportunity Commission (EEOC) claim against Stainless, alleging that she had been discharged because she was a woman.

Three weeks after Regalado filed her claim, Stainless terminated her fiancé, Eric Thompson, who also worked for the company. Thompson then filed his own claim, alleging that the company terminated him because of Regalado’s charge.

Supreme Court’s decision

Stainless argued that Thompson could not bring a retaliation claim because he personally did not engage in any “protected activity” under Title VII. Protected activity is usually established by filing a complaint, bringing an EEOC charge, etc. The court disagreed. The court noted that Title VII’s anti-retaliation provision “must be construed to cover a broad range of employer conduct.”

As the court has determined in previous cases, the anti-retaliation provisions of Title VII are considerably broader than Title VII’s substantive anti-discrimination provisions. The court noted that the anti-retaliation provision prohibits an employer from “discriminating against any of its employees” for engaging in protected conduct and prohibits conduct that might dissuade “a reasonable worker” from making or supporting a charge of discrimination.

The court went on to state that “[w]e think it’s obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.”  

Stainless argued that if Thompson prevailed it would “place the employer at risk any time it fires any employee who happens to have a connection to a different employee who filed a charge.”

The Supreme Court rejected this argument, stressing that there is “no textual basis for making an exception for third-party reprisals, and a preference for clear rules cannot justify departing from statutory text.” The court also rejected the invitation to define a “fixed class of relationships for which third-party reprisals are unlawful.”

Recognizing the opposite ends of the spectrum (a close family member versus a “mere acquaintance”), the court concluded that it could not generalize and that future cases will turn on their individual facts.

Post-Thompson cases

Several federal courts have reviewed Thompson and its application to retaliation cases. Indeed, in one recent decision, Leavitt v. SW&B Construction Co., a district court in Maine noted that Thompson would likely apply to retaliation cases brought under the Americans with Disabilities Act (ADA), “assuming that Thompsonextends to the ADA, which it likely does.”

A district court in Florida found in McGhee v. Healthcare Services Group that Thompson applied to a situation in which husband and wife worked for two separate companies because the plaintiff could prove the companies were affiliated via a subcontractor/contractor relationship. The court said that “allowing employers to induce their subcontractors to fire the subcontractor’s employees in retaliation for the protected activity of a spouse would clearly contravene the purpose of Title VII.”

 

What employers need to know

Unfortunately, Thompson leaves employers with a great deal of uncertainty.

For example:

  • How far does it reach? 
    • Employers should assume that spouses, fiancés and immediate family members will likely be covered.
  • What about an employee who is just a friend? What about a co-worker in the same department? 
    • Clearly, before terminating any employee with any connection to another employee who has recently filed a claim or engaged in other “protected activity,” employers must be sure that a legitimate business reason supports the termination.

Bottom line: Until we have further guidance from other lower courts, employers must be cautious in this area.

Contributing Author

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Sara Ackermann

Sara Ackermann is a shareholder with Wausau, Wisconsin-based Ruder Ware, where she has substantial experience advising and representing clients in the...

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