Wyatt Employment Law Report

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Supreme Court Validates Third Party Retaliation Claim

By Edwin S. Hopson

Eric Thompson and Miriam Regalado met while they both worked for North American Stainless (“NAS”) in Carroll County, Kentucky, and they became engaged to be married.  Regalado filed a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”) against NAS claiming discrimination on account of sex.  Some three weeks after NAS was notified of Regalado’s Charge, NAS fired her fiancée.  Thompson filed a Charge with the EEOC alleging retaliation and later sued in federal court. 

Thompson lost in both the U.S. District Court for the Eastern District of Kentucky and the U.S. Court of Appeals for the Sixth Circuit, which ruled en banc that Thompson was not entitled to sue for retaliation because he had not been the person who engaged in the protected activity under the statute.

On January 24, 2011, in Thompson v. North American Stainless, 562 US ____ (2011), No. 09-291, the U.S. Supreme Court, in a unanimous decision authored by Justice Antonin Scalia, ruled that the discharge of Thompson because his fiancée had filed a charge of discrimination under Title VII of the Civil Rights Act entitled Thompson to file his own retaliation charge under that statute.  Thus, a so-called “third-party retaliation” claim has now been validated under Title VII.

Justice Scalia, writing for a unanimous court, except for Justice Kagan, who took no part in consideration of the case, reasoned that the anti-retaliation provision of Title VII must be construed to cover a broad range of employer conduct citing Burlington N. & S. F. R. Co. v. White, 548 U. S. 53 (2006). According to the Court, that provision prohibits any employer action that “ ‘well might have “dissuaded a reasonable worker from making or supporting a [discrimination] charge,” ’” id., at 68. Still citing Burlington, the Court stated that the test must be applied in an objective fashion, to “avoi[d] the uncertainties and unfair discrepancies that can plague a judicial effort to determine a plaintiff’s unusual subjective feelings.” Id., at 68–69. Applying this objective test, the Court found that a reasonable employee would clearly be dissuaded from engaging in protected activity if she knew that her fiancé who was also an employee would be fired.

The Court sympathized with the argument that employers must now attempt to identify if someone about to be discharged has a close relationship with someone else in the workforce who has engaged in protected activity before taking adverse action that could expose it to a third party retaliation claim.  After rejecting that argument, it stated:

“We must also decline to identify a fixed class of relationships for which third-party reprisals are unlawful. We 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.”  Slip Opinion, page 4.

The Court, in analyzing Thompson’s Title VII standing, ruled that the term “person aggrieved” must be construed more narrowly than the outer boundaries of Article III of the Constitution, notwithstanding dictum to the contrary in Trafficante v. Metropolitan Life Ins. Co., 409 U. S. 205 (1972).  However, the Court went on to hold that at the other extreme, limiting “person aggrieved” to the person who was the subject of unlawful retaliation is too narrow a reading.  Thus, the Court decided upon a common usage of the term “person aggrieved” so as to avoid both of extremes.

Citing the Administrative Procedure Act, which authorizes suit to challenge a federal agency by any “person. . . adversely affected or aggrieved . . . within the meaning of a relevant statute,” 5 U. S. C. §702, the Court found this established a regime under which a plaintiff may not sue unless he “falls within the ‘zone of interests’ sought to be protected by the statutory provision whose violation forms the legal basis for his complaint,” Lujan v. National Wildlife Federation, 497 U. S. 871, 883 (1990).  The Court concluded:

“We have described the “zone of interests” test as denying a right of review “if the plaintiff’s interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.” Clarke v. Securities Industry Assn., 479 U. S. 388, 399–400 (1987). We hold that the term “aggrieved” in Title VII incorporates this test, enabling suit by any plaintiff with an interest “arguably [sought] to be protected by the statutes,” National Credit Union Admin. v. First Nat. Bank & Trust Co., 522 U. S. 479, 495 (1998) (internal quotation marks omitted), while excluding plaintiffs who might technically be injured in an Article III sense but whose interests are unrelated to the statutory prohibitions in Title VII.”  Slip Opinion, page 7.

Applying that test to Thompson, the Court found that he fell within the zone of interests protected by Title VII and that hurting him was the unlawful conduct by which the employer had punished his fiancée who had engaged in the protected activity of filing the Title VII Charge of Discrimination.

 Justices Ginsburg and Breyer concurred, and simply added that, “[t]oday’s decision accords with the longstanding views of the Equal Employment Opportunity Commission (EEOC), the federal agency that administers Title VII.”  Concurring Opinion, page 1.