Justices Hear Debate on Retaliation Against Third Party

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An employee who claims he was fired because his fiancee filed a sex discrimination charge against their mutual employer may sue for retaliation under Title VII of the 1964 Civil Rights Act because he is an “aggrieved” individual under the act, lawyer Eric Schnapper contended Dec. 7 in a U.S. Supreme Court oral argument (Thompson v. North Am. Stainless LP, U.S., No. 09-291, oral argument 12/7/10).

Representing Eric Thompson, a former engineer for North American Stainless LP who was fired three weeks after the company received notice of his fiancee's discrimination charge, Schnapper urged the court to reverse a U.S. Court of Appeals for the Sixth Circuit ruling that Thompson lacked a Title VII claim because he never engaged in protected activity under Section 704(a) of the act.

Schnapper argued that Section 706(f) of the act, which provides for enforcement by any “person aggrieved,” affords a statutory right of action to individuals such as Thompson, who suffer retaliation because of their familial or other close relationship with a person who files a discrimination charge.

Representing the company, attorney Leigh Gross Latherow countered that Title VII's anti-retaliation clause only protects individuals who engage in protected activity by either opposing suspected discrimination or participating in an investigation or other proceeding regarding a discrimination charge.

Although Latherow acknowledged Thompson's fiancee probably could have pursued a Title VII retaliation claim based on Thompson's firing, she warned the court that reading an associational right into Title VII would place employers in the difficult position of monitoring workplace relationships to determine who might be protected under the act.

The court repeatedly questioned Schnapper about the limits of his argument that persons in close association with a charging party have a Title VII right against retaliation. “Suppose the two were just 'good friends,' ” Justice Samuel Alito asked. “Would that be enough?”

Schnapper answered that the test set out in Burlington Northern & Santa Fe Railway Co. v. White ( 548 U.S. 53, 98 FEP Cases 385 (2006))--whether the employer's action would dissuade a reasonable person from making or assisting in a discrimination charge--provides an “important limiting principle.” He suggested that while an employer's threatened reprisals against family members or a fiance would certainly meet that test, an employer's threatened retaliation against a discrimination claimant's more distant acquaintances would not dissuade a reasonable person.

The Obama administration argued as an amicus supporting Thompson. Leondra Kruger, the acting principal deputy solicitor general, said that when an employer fires a worker “as a means of retaliating” for a close associate's discrimination charge, the fired employee is entitled to sue under Title VII, even if he or she has not engaged in “protected activity” under the act.

The Equal Employment Opportunity Commission has long taken the position that either the discrimination claimant or the fired third party has a Title VII retaliation claim in that scenario, Kruger emphasized.

Lower Courts Rejected Claim

Thompson was fired in March 2003, about three weeks after North American Stainless had received notice of an EEOC charge filed by Miriam Regalado, his fiancee. Thompson and Regalado subsequently were married.

Regalado never filed a Title VII suit, but Thompson sued, arguing that the company fired him in retaliation for Regalado's sex discrimination charge. A federal district court in Kentucky ruled in favor of the employer.

A Sixth Circuit panel reversed on appeal, holding that Thompson had a right to sue for retaliation under Title VII even though he never engaged in protected activity prior to his discharge. But the full Sixth Circuit reheard the case, and in a 10-6 decision ruled that Thompson could not sue for retaliation because he never engaged in protected activity as required by Section 704(a) (60 BTM 190, 6/16/09; 60 BTM 193, 6/23/09). All of the appeals court members apparently concurred that Regalado, who had engaged in protected activity, could have filed a retaliation suit regarding Thompson's termination.

When Thompson sought Supreme Court review, the solicitor general recommended that the court deny his petition. But the court granted review (61 BTM 209, 7/6/10) and the Justice Department subsequently joined Thompson in arguing that he may sue for retaliation under Title VII.

Not a 'Bright Line' Test

Alito asked Schnapper where he would draw the line on whether a fired employee's relationship with an individual who engaged in protected activity was close enough to permit the fired employee to file a Title VII retaliation claim. Are these all questions that would have to go to a jury? Alito asked.

Schnapper replied that Burlington Northern provides the applicable standard but that it is “not a bright line.” He remarked that the same line-drawing problem pertains to any retaliation claim under Burlington Northern.

Justice Ruth Bader Ginsburg pointed out that the Americans with Disabilities Act expressly protects individuals from employment discrimination because of their association with a person with disabilities. Are you asking us to read a similar provision into Title VII, she asked.

Schnapper replied that the ADA clause is “directed at a very different problem,” namely the concern that employers might refuse to hire someone with a disabled child, for example, because of “preconceptions” that such an individual might be a distracted employee.

In her argument for the government, Kruger said Thompson and the administration are not asking the court to read an “associational” right into Title VII.

During Kruger's argument, Alito asked what she would say is the degree of closeness required for the asserted Title VII third-party claim. “I don't think you can fashion a hard and fast rule,” she replied. Is “very good friends” enough? Alito persisted. Kruger again cited the Burlington Northern standard as the test for determining whether the relationship is sufficient under Title VII.

Argument Lacks Limits

During her argument for North American Stainless, Latherow picked up on the concerns voiced earlier by Alito and Chief Justice John Roberts. Employers indeed would have difficulty identifying who is protected by Title VII if the court adopts the standard suggested by Thompson, said Latherow, a member of the firm VanAntwerp, Monge, Jones, Edwards & McCann in Ashland, Ky.

Judge Sonia Sotomayor asked if Latherow believes Regalado could have sued for retaliation based on Thompson's termination without running into an Article III problem if she sought back pay and reinstatement for Thompson. “I don't see why she couldn't,” Latherow replied.

If you concede Regalado could have sued, then “what's the big deal,” Justice Antonin Scalia asked. Regardless of whether Regalado or Thompson filed the retaliation suit, the “employer still doesn't know who he has to be careful of,” Scalia said.

Latherow said that in Burlington Northern, the court emphasized that Title VII's anti-retaliation clause seeks to prevent harm to individuals “based on their conduct” rather than on their status as members of any particular group. She noted that in this case, Thompson sued not as an “employee” but rather as an individual related to an employee who engaged in protected activity.

Latherow spun a hypothetical in which Thompson had the same relationship with Regalado but instead of working for North American Stainless, ran an animal shelter to which the company contributed. If Regalado filed a sex discrimination charge and North American Stainless thereafter withdrew its support of the shelter, would Thompson be an “aggrieved” person under Title VII, she asked.

By Kevin P. McGowan

A transcript is at http://op.bna.com/dlrcases.nsf/r?Open=kmgn-8bwtwr.

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