2010 marked the first year that retaliation claims under federal law became the most frequently filed charge with the Equal Employment Opportunity Commission (“EEOC”). On January 24, 2011, the U.S. Supreme Court issued a decision that may add to the number of retaliation claims by holding that individuals have a right to file a Title VII claim for “association” retaliation.
Association retaliation occurs when an employee is subject to a material adverse employment action (e.g., a termination, a pay cut, etc.) because of a relationship with another employee who engages in a protected activity (e.g., filing his or her own discrimination claim against the employer). However, the employee making the retaliation claim does not need to have engaged in protected conduct. It is sufficient that someone related to or associated with that employee did so. By recognizing association retaliation, this week’s Supreme Court decision expands the population of individuals who are capable of bringing a retaliation claim.
In Thompson v. North American Stainless, L.P., the employee, Thompson, and his fiancée, Regalado, both worked for North American Stainless (“NAS”). Regalado filed a sex discrimination charge against NAS with the EEOC. Three weeks later, NAS terminated Thompson. Thompson then filed his own charge against NAS with the EEOC, alleging that NAS fired him to retaliate against Regalado for her filing a charge with the EEOC. The trial court dismissed Thompson’s lawsuit on the grounds that third-party retaliation claims are not permitted.
The Supreme Court considered two questions: (1) Did NAS's firing of Thompson constitute unlawful retaliation; and (2) if so, does Title VII grant Thompson a cause of action?
a. Did NAS's firing of Thompson constitute unlawful retaliation?
The Court found that NAS's conduct was unlawful retaliation against Regalado, who had filed the discrimination charge. 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 would dissuade a reasonable worker from making or supporting a charge of discrimination. The Court found that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.
The bigger issue facing employers is how close the relationship must be between the two employees. In this case, the employees were engaged to be married. However, employees may date one another, become "best friends," hang out casually, or attend the same church: would those relationships be considered “association”? The Court declined to delineate a line defining the closeness of the relationship between two employees that might fall within the boundary of association retaliation; instead, the Court found that the precise scope of retaliation claims that can be brought depends upon the particular circumstances.
b. Does Title VII grant Thompson a cause of action?
The Supreme Court also found that Thompson could sue NAS for its alleged violation of his co-employee/fiancée’s rights under Title VII. Under Title VII, an employee has standing to sue for a retaliation violation if the employee claims to be aggrieved. The Court noted that this standard is broader than that applied to an employee who is discriminated against. Consequently, the Court determined that an employee is aggrieved under Title VII where he or she falls within the "zone of interests" sought to be protected by Title VII. The Court determined that a plaintiff would fall within the “zone of interests” unless the plaintiff’s interests were so marginally related to or inconsistent with Title VII that it could not be reasonably assumed Congress meant for the plaintiff to be protected. The Court cited to a previous decision where residents of an apartment complex could sue the owner for his racial discrimination against prospective tenants under the Fair Housing Act. Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205 (1972). Those tenants were “aggrieved” by the owner’s discrimination against others and would fall under the “zone of interests” sought to be protected under federal law.
The Court found Thompson's interest fell within the "zone of interests" standard for two reasons: (1) he was an employee of NAS, and Title VII is intended to protect employees from their employer's unlawful actions; and (2) accepting Thompson's facts as alleged, he was not an accidental victim of the retaliation, but a means by which the employer could harm Regalado, the employee who filed the EEOC charge. The Court reasoned that hurting Thompson was the unlawful act by which NAS punished Regalado for her allegation of discrimination against NAS.
- Employers can expect the number of retaliation claims to continue to grow. Thompson adds another potential claim to an adversely affected employee's arsenal. Even so, an employer still has its retaliation defenses available. For example, an employer will still defeat a retaliation claim where it can show it would have made the same decision for legitimate, non-discriminatory reasons (requiring the employee to rebut by showing the employer's reason was a pretext) or that it was unaware of the protected activity when it took the adverse employment action. The Court did not consider argument on the employer's defenses in Thompson because it was legally required to assume that Thompson's allegations were factually correct.
- The concurrence to the Thompson decision noted that as part of the EEOC Compliance Manual the EEOC has interpreted Title VII to forbid an employer from retaliating against a worker who engaged in protected activity by inflicting reprisals on a relative or other associated individual. Although the Manual does not define who is a relative or associated individual, it provides examples of spouses and children. In an odd twist, the Thompson decision may cause the EEOC to look harder at association actions or cast a wider net on the relationships it will pursue.
- Employers will need to pay closer attention to situations where they are aware of relationships. The degree of the relationship that can result in a retaliation claim still is unclear. Close family relationships and engagements between employees will be covered. "Best friend" status and non-family relationships still are questionable.
The Supreme Court’s decision should prompt employers to review their anti-retaliation policies and practices, and to ensure that they include anti-retaliation as an important component in their regular training.