A male employee who claims he was fired because his fiancee filed a sex discrimination charge against their mutual employer may pursue a retaliation claim under Title VII of the 1964 Civil Rights Act, the U.S. Supreme Court ruled in an 8-0 decision Jan. 24 (Thompson v. N. Am. Stainless LP, U.S., No. 09-291, 1/24/11).
Reversing a federal appeals court ruling in favor of North American Stainless LP, Justice Antonin Scalia wrote that the Supreme Court had “little difficulty concluding that if the facts alleged by [petitioner Eric] Thompson are true, then [the company's] firing of Thompson violated Title VII.” The court said that applying the standards announced in Burlington Northern Santa Fe Railway Co. v. White ( 548 U.S. 53, 98 FEP Cases 385 (2006); 57 BTM 201, 6/27/06), there is no dispute that an employee considering filing a discrimination charge might well be dissuaded if she knew the employer would react by firing her betrothed.
As for the “more difficult” question of whether Thompson, in addition to his fiancee who filed the sex bias charge, has a Title VII retaliation cause of action, the court decided Thompson is a “person aggrieved” within the meaning of the act and therefore entitled to sue.
Thompson alleged that three weeks after North American Stainless received notice that Miriam Regalado, then his fiancee and now his wife, had filed a sex discrimination charge, the company fired Thompson in retaliation for Regalado's charge. A federal district court in Kentucky ruled in favor of the company, reasoning that since Thompson never engaged in protected activity under Title VII, he lacked a statutory retaliation claim.
In a 10-6 decision, the U.S. Court of Appeals for the Sixth Circuit affirmed, stating that although Regalado might have a retaliation claim based on Thompson's firing, Thompson could not sue under Title VII absent evidence he had engaged in protected activity ( 567 F.3d 804, 106 FEP Cases 639 (2009); 60 BTM 190, 6/16/09).
The Supreme Court, however, ruled that Thompson is a “person aggrieved” within the meaning of Title VII. Although the court said the scope of “person aggrieved” under Title VII is narrower than the “injury in fact” standard for Article III standing under the U.S. Constitution, it said the term is broader than solely an employee who engages in protected activity. Thompson may pursue a Title VII claim because he falls within the “zone of interests” covered by the statute, the court decided.
“Thompson was an employee of [North American Stainless], and the purpose of Title VII is to protect employees from their employers' unlawful actions,” Scalia said. “Moreover, accepting the facts as alleged, Thompson is not an accidental victim of the retaliation--collateral damage, so to speak, of their employer's unlawful actions. To the contrary, injuring him was the employer's intended means of harming Regalado. Hurting him was the unlawful act by which the employer punished her. In those 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.”
Justice Elena Kagan did not participate in the decision, as she earlier had recused herself. The court granted review of the Sixth Circuit's ruling last June (61 BTM 209, 7/6/10) and heard oral argument Dec. 7 (61 BTM 401, 12/21/10). The Obama administration argued as an amicus for Thompson.
Michael Foreman, a Pennsylvania State University law professor who submitted an amicus brief for the National Employment Lawyers Association, called the decision “an amazing win” for employees.
The decision follows the Supreme Court's recent trend of favoring plaintiffs in retaliation cases under Title VII and other federal employment laws, Foreman told BNA Jan. 24. “The ease with which the court disposed of the case reinforced that the court is extremely protective of the right to be free from unlawful retaliation in the workplace,” he said. “The court seems to really understand that if you are not extremely protective of the right to challenge unlawful actions, the rights themselves become meaningless.”
The court “has been consistent on this point recently,” beginning with Burlington Northern and continuing with decisions including CBOCS West Inc. v. Humphries ( 128 S. Ct. 1951, 103 FEP Cases 481 (2008); 59 BTM 177, 6/3/08) and Crawford v. Metropolitan Government of Nashville & Davidson County ( 129 S. Ct. 846, 105 FEP Cases 353 (2009)), Foreman said.
Rae T. Vann, general counsel of the Equal Employment Advisory Council in Washington, D.C., which represents large employers, said she is “disappointed though not terribly surprised” by the decision.
The court's refusal to draw “clear-cut lines” about what relationships are sufficient to trigger a third-party retaliation claim and its endorsement of a “zone of interests” test to determine who may sue may both encourage a bumper crop of Title VII retaliation claims, Vann told BNA Jan. 24.
“Employers look for clear-cut guidance” in seeking to comply with federal anti-discrimination laws and the court's decision fails to provide that, Vann said. She asserted that at a time when retaliation was the most frequent charge filed with the Equal Employment Opportunity Commission in fiscal year 2010, the court's ruling could result in even more retaliation claims testing the boundaries of this latest ruling.
“[W]e're obviously delighted,” Eric Schnapper, a University of Washington law professor who represented Thompson, said of the court's decision. It “should go a long way to making it clear that such practices are unlawful,” he said.
Schnapper said the problem of employers retaliating against family members or associates of those filing discrimination charges has grown since women began entering the workforce in large numbers. The court's decision recognizing such claims under Title VII should also affect other federal anti-discrimination and employment laws, Schnapper told BNA Jan. 24.
Alex Long, a University of Tennessee law professor who has written about retaliation in employment, said that Thompson is a “really good decision” for employees and somewhat surprising as a unanimous opinion written by Scalia. But Long added that third parties alleging retaliation still must prove causation, as Thompson will have to do on remand. An employee alleging retaliation who is not a family member or close associate of the charging party, or who alleges adverse action less severe than termination, could have difficulty proving a Title VII claim, Long told BNA Jan. 24.
Leigh Gross Latherow, who represented North American Stainless, said she is disappointed by the ruling but that her client plans to defend Thompson's claim before a jury. The court “opens the door to a lot of unanswered questions” and, for the first time, extends Title VII's anti-retaliation shield to workers who have not engaged in protected activity, said Latherow, who is with VanAntwerp, Monge, Jones, Edwards & McCann in Ashland, Ky.
“We have a whole new class of plaintiffs” because of the court's opinion, Latherow told BNA Jan. 24. She added, however, that the court's opinion is not a complete victory for Title VII plaintiffs, as the justices rejected the proposed “injury in fact” standard for determining an individual's standing to sue under the act.
Steven Hurd, a management attorney with Proskauer Rose in New York City, told BNA Jan. 24 that following Thompson, companies firing an employee must at least perform “an on-the-surface analysis” of the fired employee's relationship with individuals who have filed discrimination complaints. Although the court recently has looked favorably on retaliation claims, Hurd said, “This decision really takes it quite far.”
The decision can be accessed at http://op.bna.com/dlrcases.nsf/r?Open=kmgn-8delmy.
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