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February 23, 2011 | 08:34 AM |
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Supreme Court Decision Widens Scope of Third Party Retaliation Claims

In an 8-0 decision, the U.S. Supreme Court recently allowed an employee who was allegedly fired in retaliation for a sex discrimination charge filed by his fiancée to sue his employer under Title VII of the Civil Rights Act of 1964. Like Title VII, the FMLA has an antiretaliation provision that could extend similar protection to third parties such as fiancées and close family members.

What Happened
The employee, Eric Thompson, and his fiancée, Miriam Regalado, were employees of North American Stainless, LP (NAS). Regalado filed a sex discrimination complaint with the Equal Opportunity Employment Commission (EEOC), and 3 weeks after NAS received notice of the charge, Thompson was fired. Thompson then filed his own charge with EEOC, claiming his termination was in retaliation for Regalado’s initial complaint.

The U.S. District Court for the Eastern District of Kentucky ruled in favor of NAS. The case proceeded to the 6th Circuit Court of Appeals, who first reversed the ruling, but later affirmed, finding that Thompson could not raise a retaliation claim because he himself had not filed a charge of discrimination. The case was then heard by the Supreme Court.

What the Court Said
The Supreme Court reversed the lower courts decision, finding that “Title VII’s antiretaliation provision must be construed to cover a broad range of employer conduct,” in this case, third-party retaliation. Thompson v. North American Stainless, LP, No. 09–291, U.S. Supreme Court (January 24, 2011).

Title VII allows a “person aggrieved” to file a civil action. In defining “person aggrieved,” the Court relied on a “zone of interests” test. The test permits a person to sue if he or she “falls within the ‘zone of interests’ sought to be protected by the statutory provision whose violation forms the legal basis for his complaint.”

The justices found that “injuring him [Thompson] was the employer’s intended means of harming Regalado. Hurting him was the unlawful act by which the employer punished her. In these circumstances, we think Thompson well within the zone of interests sought to be protected by Title VII. He is a person aggrieved with standing to sue.”

NAS argued that allowing Thompson to sue would open the employers up to retaliation lawsuits from everyone who gets terminated who has any connection to a complaining employee.

In response, Justice Scalia wrote in his opinion, “[w]e expect that firing a close family member will almost always meet the standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize.”

Practical Tip for Employers

The FMLA makes it unlawful for any employer to “interfere with, restrain, or deny the exercise of or the attempt to exercise” any right under the FMLA, or to “discharge or in any other manner discriminate against any individual for opposing” any violation of the FMLA. In light of this language, it seems likely that employees’ attorneys and the U.S. Department of Labor (DOL) will seek to apply the Court’s logic in Thompson to third-party retaliation claims under the FMLA.

What does this mean for employers? When deciding whether to terminate or take other adverse action against an employee, it may not be enough to consider whether that employee has recently exercised FMLA rights or engaged in other activities protected by state or federal law. Now, the employer must consider whether the employee has some significant connection to any other employee who engaged in such protected activities. For example, is the employee married to, dating, or good friends with another employee who recently requested FMLA leave or filed a DOL complaint? If so, additional caution may be warranted.

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