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eLABORate: Supreme Court Recognizes Third-Party Retaliation Claims

January 25, 2011

On January 24th, the Supreme Court decided Thompson v. North American Stainless, LP.  The Court held that Title VII of the Civil Rights Act of 1964 permits so-called “third-party reprisal” claims.  In brief, an employee may sue for retaliation if he is fired—or otherwise treated adversely—in response to a complaint of discrimination by a co-worker with whom he has a close relationship.  The decision further complicates an area of the law that already was murky, and provides little guidance to employers about compliance.

The plaintiff, Eric Thompson, and his fiancée Miriam Regalado were employees of North American Stainless.  Regalado brought an EEOC charge alleging sex discrimination.  Three weeks later, NAS fired Thompson.  Thompson brought suit under Title VII, claiming his termination was in retaliation for his fiancée’s complaint.  The district court dismissed the claim and the appeals court affirmed the dismissal.

The Supreme Court agreed to hear the case in order to answer two questions.  First, was Thompson’s firing unlawful retaliation?  And second, if it was, does Title VII give him a right to sue, despite the fact that his fiancée—not he—brought the EEOC charge that was the basis for the alleged retaliation? The Supreme Court unanimously answered yes to both questions, reversing the lower courts, and expressly recognizing the availability of third-party reprisal claims.

As Justice Scalia acknowledged in the majority opinion, the decision will leave employers with new questions about compliance.  Most importantly, how close must the association between employees be before liability may attach?  The opinion suggests that “firing a close family member will almost always” meet the Title VII standard if retaliatory intent can be shown, whereas “a milder reprisal on a mere acquaintance will almost never do so.”  But what about a “girlfriend, close friend, or trusted co-worker?”  The Court’s opinion offers no guidance about these situations, except to say that liability will “depend upon the particular circumstances.” 

In recent years, the Supreme Court and other federal courts have gradually eroded the bright line rules employers once used to avoid retaliation claims. The decision in Thompson continues this trend.  It is no longer enough for employers to ask whether the employee himself recently has raised any complaint about discrimination. They now must also consider whether a complaining employee has any significant relationship with any co-worker.  And if so, is the relationship sufficiently close that action against one employee might look like an attempt at reprisal against the other?

At oral argument, Justice Alito quipped that employers might need to “keep a journal” of “intimate or casual” relationships between employees in order to avoid retaliation lawsuits.  While this seems a bit much, employers should pay careful attention to the particular circumstances of employees who complain about alleged discrimination, as well as those who may be fired or otherwise adversely affected.  When in doubt, it pays to discuss the matter with counsel before taking any significant adverse employment action.