Growing Trend
According to the latest Equal Employment Opportunity Commission (“EEOC”) figures, the number of retaliation claims under federal law has doubled in the last decade to more than 36,000 per year. Not surprisingly, 2010 EEOC filings indicate that retaliation claims were the most frequently filed charge. A recent decision issued by the U.S. Supreme Court could certainly impact this growing trend. It is important that employers be aware of this decision and be proactive in reviewing their current anti-retaliation policies and practices.
Case Background
The Supreme Court, in January of this year, handed down a decision which expands the group of employees who can bring retaliation causes of action under Title VII. The case, Thompson v. North American Stainless, LP., 562 U.S. ____ (2011) concerns whether an employee who did not file a Title VII claim or engage in protected activity can bring a Title VII retaliation claim.
Plaintiff, Eric Thompson, and his fiancée, Miriam Regalado, both worked for the same employer, North American Stainless (NAS). Regalado filed a sex discrimination charge with the EEOC against NAS. NAS fired Thompson approximately three weeks later. Thompson then subsequently filed his own charge and a separate suit against NAS under Title VII of the Civil Rights Act, claiming that NAS fired him to retaliate against Regalado for filing her charge. The District Court dismissed Thompson’s claims, holding that third-party retaliation claims were not permitted by Title VII, and granted summary judgment to NAS. The Sixth Circuit Court of Appeals affirmed, reasoning that Thompson was not entitled to sue NAS for retaliation because he had not engaged in any activity protected by the statute.
The U.S. Supreme Court’s Decision
The Supreme Court agreed to hear the case and ultimately reversed the lower courts, holding that Thompson could bring a retaliation action under Title VII. In Burlington Northern v. White, the Court held that Title VII’s anti-retaliation provision must be construed to cover a broad range of employer conduct and prohibits any employer action that well might dissuade a reasonable worker from making or supporting a discrimination charge. Expanding on this previous holding, the Court concluded that “a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.” The unanimous Court decision, written by Justice Scalia, held that Thompson’s firing by NAS did indeed constitute unlawful retaliation.
Third Parties Can Now Sue For Retaliation
This ruling greatly expands the group of employees that can bring Title VII retaliation claims. This is especially true considering that the Supreme Court held that Thompson could bring a retaliation charge despite the fact that he never filed an EEOC charge, didn’t speak out about the harassment allegedly suffered by his fiancée, and didn’t offer additional information to support her charge. Further, the Supreme Court indicated it would not categorically rule out similar types of retaliation claims made by a Title VII complainant’s girlfriend/boyfriend, close friend, or trusted co-worker.
Document, Document, Document
In light of this ruling, employers must be cautious in disciplining or terminating any employee who was closely associated with an employee who recently filed an EEOC charge or brought a Title VII lawsuit. As with Thompson, any third-party retaliation Plaintiff will still have the burden of establishing that the actions of an employer were made as a result of the EEOC/Title VII action of a closely associated employee. However, this case at the very least supplies such employees with a cause of action against their employers. The existence of such causes of action makes it more important than ever for employers to properly and formally document all employee performance issues. Employers should now review and revise current anti-retaliation policies, document specific reasons for all employee terminations and outline specific reasons behind any discipline taken against employees. Following the above protocol will be instrumental in limiting employee arguments for termination due to alleged employer retaliatory motives.
