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Supreme Court Upholds “Relative” Retaliation Claim; Avoids Setting “Bright Line” Rule — Part I, the Decision

Ruling in Thompson Fiancé Retaliation Case

Court Uphold’s Fiancé’s Retaliation Complaint

In Thompson vs. North American Stainless,the Supreme Court addressed whether a friend or relative of an employee who made a complaint of discrimination may pursue a claim that they suffered retaliation because of that complaint — despite not having been the one who made it.

In a brief opinion penned by Justice Scalia, the Court unanimously held that such claims may be brought under some circumstances, including those before the Court in Thompson, in which the person alleging retaliation was the original discrimination complainant’s fiancé.

The Court expressly “decline[d] to identify a fixed class of relationships for which third-party reprisals are unlawful,” leaving this to case-by-case determination. The Court did, however, provide some useful guidance to lower courts confronting this issue:

We expect that firing a close family member will almost al­ways [be actionable], and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize.

Third-Party Retaliation Issue Raised By Simple Story of Employee and Her Fiancé

The story leading to the retaliation charge dates back to February 2003, when Miriam Regalado filed a gender discrimination charge against North American Stainless, her employer at the time, after being fired.

Three weeks later, Regalado’s fiancé, Eric Thompson, was also terminated. Thompson then filed his own discrimination charge, claiming his termination was in retaliation for Regalado’s discrimination charge.

This charge led to a lawsuit that made its way to the Supreme Court after a 2006 summary judgment for the employer, a Sixth Circuit reversal, and then a 2009 en banc rehearing in which the Sixth Circuit affirmed the original summary judgment, reasoning that because Thompson did not “engag[e] in any statutorily protected activity, either on his own behalf or on behalf of Miriam Regalado,” he “is not included in the class of persons for whom Congress created a retaliation cause of action.”

This simple statement of facts at the Supreme Court level may leave some readers wondering why it took from 2003 to 2011 to obtain a final ruling from the Supreme Court. Part of the explanation is that each step along the way takes time, while issues are briefed and, at some stages, orally argued.

But part is that cases that appear factually simple by the time they reach the Supreme Court look that way because the issues have been narrowed throughout the process, including in the Court’s opinion-writing work. It is a safe bet that at earlier stages there was a major factual dispute as to why Thompson was let go, involving depositions of witnesses and document review; and legal arguments about whether the facts surrounding his termination supported an inference of retaliatory motive.

The Court’s opinion, though final as to the legal issue, merely paves the way for the parties to continue to litigate those issues, as the Court “remanded for further proceedings consistent with this opinion.”

Supreme Court Addressed Two Distinct, But Related Legal Issues in the Thompson Decision

The Court stated the issues this way:

  1. Did NAS’s firing of Thompson constitute unlawful retaliation?
  2. If it did, does Title VII grant Thompson a cause of action?

It might seem obvious as a matter of common sense that if the answer to the first question is that the firing was unlawful, of course Thompson could sue. But who ever said common sense applied to the law?

Not everyone can sue just because unlawful conduct has occurred. For example, an unlawfully terminated employee’s landlord can’t sue because the firing led to the fired employee’s inability to pay rent. Much difficult law has been developed concerning who can sue, often described as “standing to sue.”

In this instance, common sense was quite obviously right: Thompson, after all, was the injured person, not someone remotely affected, so if retaliating against him is unlawful he can sue for it. But whoever said lawyers don’t raise obviously losing arguments — and even take them all the way to the High Court?

Here, the Court actually found that the standing issue was “[t]he more difficult question.”

The Supreme Court’s Ruling On the Fiancé’s Retaliation Claim

The Court’s ruling on the first question, whether Thompson’s firing could be unlawful retaliation, was guided by the Court’s 2006 ruling in Burlington N. & S. F. R. Co. v. White. In Burlington, the Court held:

[T]he anti-retaliation provision does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace. … [T]he provision covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant. … [T]he employer’s actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.

Showing remarkable common sense, undoubtedly cutting through plenty of legal obfuscation in the briefs and arguments, the Court said:

We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity [such a filing a charge] if she knew that her fiancé would be fired.

NAS made a classic “slippery slope” argument, contending that:

Prohibiting reprisals against third parties will lead to difficult line-drawing problems concerning the types of relationships entitled to protection. Perhaps retaliating against an employee by firing his fiancée would dissuade the employee from engaging in protected activity, but what about firing an employee’s girlfriend, close friend, or trusted co-worker? Applying the Burlington standard to third-party reprisals, NAS argue[d], will 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 with the EEOC.

The Court wisely declined to take the bait, stating:

Although we acknowledge the force of this point, we do not think it justifies a categorical rule that third-party reprisals do not violate Title VII. [W]e adopted a broad standard in Burlington because Title VII’s antiretaliation provision is worded broadly. … [T]here is no textual basis for making an exception to it for third-party reprisals, and a preference for clear rules cannot justify departing from statutory text.

As noted above, the only additional guidance the Court provided was to state the polar extremes that a close family member would normally have a retaliation claim if terminated, while a a mere acquaintance suffering a milder reprisal would not.

The Court’s Ruling on the Fiancé’s Standing to Sue

On this issue, the Court had to apply different statutory language, that providing a remedy to a “person claiming to be aggrieved” by a violation. Again, one would think Thompson obviously fit the bill, and the Court agreed, but only after wading through a somewhat dense argument about whether this definition is coextensive with Article III jurisdiction. The Court held it was not:

If any person injured in the Article III sense by a Title VII violation could sue, absurd consequences would follow. For example, a shareholder would be able to sue a company for firing a valuable employee for racially discriminatory reasons, so long as he could show that the value of his stock decreased as a consequence.

Instead, the Court adopted a “zone of interests” test used in other contexts, which provides standing to sue to anyone who “falls within the ‘zone of interests’ sought to be protected by the statutory provision whose violation forms the legal basis for his complaint.”

Applying this standard, the Court easily found Thompson had a right to sue because he:

was an employee of NAS, and the purpose of Title VII is to protect employees from their employers’ unlawful actions. Moreover, accepting the facts as alleged, Thompson is not an accidental victim of the retaliation — collateral damage, so to speak, of the employer’s unlawful act. 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.

In part II of our coverage of the Thompson case, we’ll look at some commentary from new and old media, and some practical implications of the case.