Supreme Court Spotlight: Employer Retaliation Suits and Third Party Protection
by Brett A. Condon, Esq. as published on 02/09/2011 in Upon Further Review, a publication by the Philadelphia Bar Association
On January 24, 2011, the Supreme Court delivered a unanimous opinion written by Justice Antonin Scalia holding that a third party subjected to retaliation by his employer has standing to sue under Title VII even if he himself did not engage in any protected activity. The decision makes protection from employer retaliation available to more plaintiffs and will likely give rise to an interesting new line of cases involving third-party relationships in the workplace.
The case, Thompson v. North American Stainless, LP (No. 09-291), was brought by Eric Thompson, a former employee of the Defendant, North American Stainless, LP (“NAS”). Thompson’s fiancé, Miriam Regelado, also an employee of NAS, filed a charge of sex discrimination with the Equal Employment Opportunity Commission (“EEOC”). Shortly thereafter, NAS terminated Thompson’s employment. Thompson then filed his own charge with the EEOC, alleging that NAS had terminated his employment in retaliation for Regelado having filed her charge.
The District Court granted NAS’s motion for summary judgment. The en banc Sixth Circuit affirmed, holding that third-party retaliation claims were not permitted by Title VII. Authorized claimants were limited to those who had engaged in protected activity themselves, through filing a charge, opposing a practice prohibited by Title VII, or participating in an investigation. The Supreme Court unanimously disagreed. Justice Ruth Bader Ginsburg concurred, joined by Justice Stephen G. Breyer.
The Court was faced with two questions: (1) Did NAS’ termination of Thompson’s employment constitute unlawful retaliation under Title VII? (2) If so, did Title VII grant Thompson a cause of action? With regard to the former, the Court had “little difficulty concluding that if the facts alleged by Thompson are true, then NAS’s firing of Thompson violated Title VII.” The Court affirmed its holding in Burlington N.&S.F.R. Co. v. White, 548 U.S. 53 (2006) that “Title VII’s antiretaliation provision must be construed to cover a broad range of employer conduct.” In Burlington, the Court contrasted the text and purpose of Title VII’s antidiscrimination provision with its antiretaliation provision, ultimately concluding that Title VII’s antiretaliation provision prohibits any employer action that “might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” In light of Burlington, the Court thought it “obvious” that the possibility one’s fiancé might be fired might be sufficient to dissuade someone from engaging in protected activity.
As to the second question facing the court, whether Thompson had standing to bring suit, the Court expanded the application of the “zone of interest” rule from its holding in Lujan v. National Wildlife Federation, 497 U.S. 871, 883 (1990). There, the Court held that a plaintiff may sue if he “falls within the ‘zone of interests’ sought to be protected by the statutory provision whose violation forms the legal basis for his complaint.” Applying that test, the Court found that Thompson was within the zone of interests Title VII sought to protect as an employee.
Please see the full article in the February 2011 Upon Further Review.