The U.S. Supreme Court has broadened the meaning of "retaliation" under Title VII, and a pending case may expand the meaning further.
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U.S. Supreme Court To Decide
Whether Title VII Protects Employee’s Fiancée
By Christopher W. Olmsted
The U.S. Supreme Court has agreed to review a case where an employee claimed he was illegally fired because his fiancée filed an EEOC charge. The case, titled Thompson v. North American Stainless LP, follows on the heels of another retaliation case decided by the Court. Regardless of the outcome of this case, employers should keep the facts of this case in mind when responding to discrimination claims.
Fiancée Terminated
Eric Thompson and Miriam Regalado both worked at a stainless steel manufacturing plant in Kentucky owned by North American Stainless. They began dating while employed at the plant and became engaged to be married.
In September 2002, Ms. Regalado filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging that her supervisors had discriminated against her based on her sex. Three weeks after the company received notice of the charge, it terminated Mr. Thompson. The company contended that Mr. Thompson was terminated for performance-based reasons
Disbelieving the company’s explanation, Mr. Thompson filed his own charge with the EEOC, alleging that he was terminated in retaliation for his fiancée’s EEOC charge. He then filed a lawsuit against the company, alleging retaliation in violation of Title VII.
Title VII Anti-Retaliation Provisions
Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e provides:
It shall be an unlawful employment practice for an employer to discriminate against any of his employees because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.
Lower Courts: No Right To Sue
Mr. Thompson argued that he was protected by this anti-retaliation clause, but the district court and Sixth Circuit Court of Appeal rejected the argument. The appellate court determined that Mr. Thompson was not protected because he did not oppose an unlawful employment practice, make a charge, testify, assist, or participate in an investigation. Mr. Thompson “is not included in the class of persons for whom Congress created a retaliation cause of action because he personally did not oppose an unlawful employment practice,” wrote the appellate court.
The federal 3rd, 5th, and 8th circuits have all agreed that such third party retaliation claims are not allowed under Title VII.
Supreme Court Expanding Anti-Retaliation Protections
The U.S. Supreme Court has made two important retaliation rulings in recent years, but it is not clear how the court will rule in the present matter.
In 2006, in a case titled Burlington Northern & Santa Fe Railway Co. v. White, the court ruled that an employer may be liable under Title VII for a materially adverse action that would dissuade a reasonable employee from making or assisting with a discrimination complaint. The case made it clear that retaliation can be more subtle than the traditional concepts of adverse employment action, such as termination or demotion.
In Burlington, a female railroad worker complained about sexual harassment, and thereafter was reassigned to more laborious, dirty work, and was suspended during an allegedly trumped up misconduct investigation. The employee alleged retaliation, but the employer claimed that she could not make a claim because it did not terminate her or change her pay or benefits.
Justice Breyer wrote in the Burlington opinion: “A schedule change in an employee's work schedule may make little difference to many workers, but may matter enormously to a young mother with school age children. A supervisor's refusal to invite an employee to lunch is normally trivial, a nonactionable petty slight. But to retaliate by excluding an employee from a weekly training lunch that contributes significantly to the employee's professional advancement might well deter a reasonable employee from complaining about discrimination.”
In 2009, the Supreme Court also addressed Title VII retaliation in a case titled Crawford v. Metropolitan Government of Nashville. The Court held that the Title VII anti-retaliation provision's protection extends to an employee who speaks out about discrimination not on her own initiative, but in merely answering questions during an employer's internal investigation.
In Crawford, after an employee complained of a supervisor’s sexual harassment, another employee was interviewed and gave eyewitness accounts of the supervisor’s misconduct. Subsequently she was fired, and she then brought a retaliation lawsuit under Title VII.
Validating the employee’s claim, the Court wrote that a person can “oppose” conduct by responding to someone else's questions just as surely as by provoking the discussion. Relying on an EEOC interpretation of the law, the Court wrote: “When an employee communicates to her employer a belief that the employer has engaged in ... a form of employment discrimination, that communication virtually always constitutes the employee's opposition to the activity.”
The U.S. Supreme Court will hear oral arguments on the case this fall.
There Is A Plaintiff In Here Somewhere
Employers should note that regardless of the outcome of this case, allegations of retaliation against a relative (or potentially other close connections) should be a concern. The parties in the Thompson case do not dispute that the complaining employee, Ms. Regalado, could have alleged retaliation. Specifically, she could have alleged that in retaliation for making the discrimination claim, the company terminated her fiancée. As the party asserting her rights under Title VII, such a claim might have merit under the Court’s Burlington case. In other words, an employee could be dissuaded from making a discrimination claim under threat of terminating her fiancée.
Accordingly, employers should adopt a broader perspective when considering the possibility of retaliation accusations.
Practical Tips
Implement anti-discrimination and anti-retaliation policies, encouraging employees to make known any perceptions of illegal conduct.
Termination decisions and other adverse personnel actions should be based on documented legitimate non-discriminatory factors.
Train managers and supervisors regarding the potential scope of discrimination and retaliation claims, so that they understand that taking adverse action against employees closely associated with complaining employees (family members, romantic interests) may also give rise to the appearance of retaliation against the employee. (See the two points above.)
Related Articles:
Sexual Harassment Update: U.S. Supreme Court Protects Investigation Participant From Retaliation
Cal Supreme Court: Supervisors Not Personally Liable for Retaliation Under FEHA
Download entire July 2010 Legal Update in PDF format.
This article is intended as a brief overview of the law and are not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney. Copyright © 2010 by Barker Olmsted & Barnier, APLC. San Diego, California. All rights reserved.
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