Friday, January 28, 2011

Supreme Court recognizes third-party retaliation claim

How far does Title VII's anti-retaliation provision take us? The Supreme Court says it can take us pretty far, at least if the fiance of the woman who files an EEOC complaint is fired in retaliation for that complaint.

The case is Thompson v. North American Stainless, decided on January 24. The Supreme Court has been issuing some pro-plaintiff retaliation decisions over the last decade or so, giving life to Title VII's prohibition against retaliation where employees protest workplace discrimination in good faith. This case asks whether third-party retaliation violates Title VII. At least when someone is fired in retaliation for a close family member's protected activity (such as an EEOC charge or an in-house discrimination complaint), the poor fellow who was fired but did not actually engage in the protected activity can bring a lawsuit.

This decision is in two parts. First, echoing the legal standard that the Court adopted in Burlington Northern v. White, 548 U.S. 53 (2006), Justice Scalia says that "we think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiance would be fired." But the Court does not tell us how far this reasoning will take us. "We must ... 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."

The second part of the decision asks whether the plaintiff here falls within the "zone of interests" protected by Title VII. True, the fiance is aggrieved by his termination, but can he sue for damages? The Court takes the opportunity to run away from dicta in a case from 1972 that suggested that "the Title VII aggrievement requirement conferred a right to sue on all who satisfied Article III standing." Conceivably, any number of people might be "aggrieved" by an unlawful termination, including shareholders. But shareholders are not within the zone of interests protected by Title VII, which "enabling suit by any plaintiff with an interest arguably sought to be protected by the statutes." That dicta was "ill-considered," the Court says. Thompson still falls within the zone of interests because he "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 [his fiance]. Hurting him was the unlawful act by which the employer punished her."

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