The United States Supreme Court recently expanded the scope of protection from retaliation under Title VII of the Civil Rights Act of 1964 (“Title VII”) to cover associational retaliation. In Thompson v. North American Stainless, LP, __ U.S. __, 131 S. Ct. 863 (January 24, 2011), the Court ruled that in certain situations, Title VII allows an employee who has not personally previously engaged in protected activity to bring a retaliation claim against an employer who has taken action an adverse employment action against that individual.
By way of background, Thompson and his fiancée were both employed by North American Stainless (“NAS”). NAS fired Thompson shortly after (approximately three weeks) Thompson’s fiancée filed an EEOC sex discrimination charge against NAS. Thompson then filed his own EEOC charge under Title VII’s anti-retaliation provision, claiming that NAS fired him in retaliation for his fiancée’s protected activity. Thompson subsequently filed a lawsuit in federal district court. The district court granted summary judgment to NAS, finding that Title VII does not allow for third-party retaliation claims. On appeal, the United States Court of Appeals for the Sixth Circuit held that Thompson did not have a cause of action under Title VII because he had not personally engaged in statutorily protected activity, such as filing an EEOC charge.
After agreeing to entertain Thompson’s petition for certiorari, the Supreme Court addressed two issues. First, did NAS’s firing of Thompson constitute unlawful retaliation? And second, did Thompson have standing to maintain a cause of action under Title VII? In addressing the first issue, the Court looked to its decision in Burlington N. & S. F. R. Co. v. White, 548 U.S. 52 (2006), where it held that Title VII’s anti-retaliation provision prohibits any action that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Looking to the facts in Thompson’s case, the Court determined that it was “obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.” Thus, Title VII’s anti-alienation provision covered Thompson’s firing.
In addressing the second, more difficult question, of whether Thompson had standing to bring an action against NAS under Title VII, the Court applied the “zone of interests” test set forth in Lujan v. National Wildlife Federation, 497 U.S. 871 (1992). Under that test, an individual has standing if he or she falls within “the zone of interests sought to be protected by the statutory provisions whose violation forms the legal basis for his complaint.” The Court held that Thompson fell within that zone because Title VII’s purpose is to protect employees from unlawful actions, and that hurting Thompson to punish his fiancée was such an unlawful act. Moreover, the Court found, Thompson was not an “accidental victim” or “collateral damage” in the case, “but to the contrary, injuring him was [NAS’s] means of harming [his fiancée].”
By way of background, Thompson and his fiancée were both employed by North American Stainless (“NAS”). NAS fired Thompson shortly after (approximately three weeks) Thompson’s fiancée filed an EEOC sex discrimination charge against NAS. Thompson then filed his own EEOC charge under Title VII’s anti-retaliation provision, claiming that NAS fired him in retaliation for his fiancée’s protected activity. Thompson subsequently filed a lawsuit in federal district court. The district court granted summary judgment to NAS, finding that Title VII does not allow for third-party retaliation claims. On appeal, the United States Court of Appeals for the Sixth Circuit held that Thompson did not have a cause of action under Title VII because he had not personally engaged in statutorily protected activity, such as filing an EEOC charge.
After agreeing to entertain Thompson’s petition for certiorari, the Supreme Court addressed two issues. First, did NAS’s firing of Thompson constitute unlawful retaliation? And second, did Thompson have standing to maintain a cause of action under Title VII? In addressing the first issue, the Court looked to its decision in Burlington N. & S. F. R. Co. v. White, 548 U.S. 52 (2006), where it held that Title VII’s anti-retaliation provision prohibits any action that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Looking to the facts in Thompson’s case, the Court determined that it was “obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.” Thus, Title VII’s anti-alienation provision covered Thompson’s firing.
In addressing the second, more difficult question, of whether Thompson had standing to bring an action against NAS under Title VII, the Court applied the “zone of interests” test set forth in Lujan v. National Wildlife Federation, 497 U.S. 871 (1992). Under that test, an individual has standing if he or she falls within “the zone of interests sought to be protected by the statutory provisions whose violation forms the legal basis for his complaint.” The Court held that Thompson fell within that zone because Title VII’s purpose is to protect employees from unlawful actions, and that hurting Thompson to punish his fiancée was such an unlawful act. Moreover, the Court found, Thompson was not an “accidental victim” or “collateral damage” in the case, “but to the contrary, injuring him was [NAS’s] means of harming [his fiancée].”
The Court declined to define the class of protected relationships entitled to coverage under Title VII’s anti-alienation provision, stating that “[w]e expect that firing a close family member will almost always meet the Burlington standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize.” However, the Court emphasized that “the provision’s standard for judging harm must be objective” and not based on an individual’s subjective feelings.
Because the Supreme Court’s ruling in Thompson opens the door to “third party” or “associational” lawsuits against employers -- but does not provide precise guidance on what degree of action and what level of relationship will create potential liability -- employers must recognize the added risk of taking some action that may not only be viewed as retaliating against an employee engaging in protected activity, but also against others in some undefined level of relationship with that person. The Supreme Court has left it to the lower courts, at least for now, to define the class of protected relationships entitled to coverage.
