Articles and Newsletters

Client Alert from the Labor and Employment Group - February 2011

Supreme Court Recognizes Third-Party Right
To Pursue Retaliation Claims Under Title VII

By Eric J. Johnson

In a unanimous decision, Thompson v. North American Stainless, LP 09-291 (Jan. 24, 2011), the U.S. Supreme Court held that a third party employee, whose fiancée filed a discrimination charge against the employer, may sue the employer for retaliation under Title VII.

Thompson Further Extends the Broad Reach of Retaliation

In the case, Eric Thompson was fired a few weeks after his fiancée filed a sex discrimination charge with the Equal Employment Opportunity Commission (EEOC) against their mutual employer, North American Stainless. The Supreme Court's decision reversed that of the Sixth Circuit Court of Appeals, which found that Thompson did not have standing to bring a retaliation suit under Title VII because he did not, himself, engage in protected activity.

In reversing the Sixth Circuit dismissal, the U.S. Supreme Court found that Thompson fell within Title VII's "zone of interest." Under the "zone of interest" test, a person with an interest "arguably sought to be protected" by Title VII falls within the class of those individuals who may bring a retaliation claim under Title VII. According to the U.S. Supreme Court, Title VII's anti-retaliation provision "is not limited to discriminatory actions that affect the terms and conditions of employment. Rather, [it] prohibits any employer action that 'well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.'"

Accordingly, in finding for Thompson, the Court concluded that a reasonable employee, whose fiancée also works for the same employer, might be dissuaded from engaging in protected activity if (s)he knows the fiancée could be fired.

What Actions Should Employers Take In Response to the Decision?

Retaliation claims have been on the rise. In fact, according to EEOC statistics for 2010, for the first time in history, retaliation claims became the most frequently filed of all charges. The Thompson decision likely will fuel a further increase given that it makes clear that protected activity is no longer limited to the one who engaged in the activity. Thus, employers should review their retaliation policies to ensure they are broad enough and, from a procedural perspective, disseminated to all employees who should be required to acknowledge receipt.

Likewise, it is critical that companies ensure employees receive proper training on retaliation, with specific initiatives directed toward educating supervisors and managers as to proper avoidance and response tactics.

Because the Court was reluctant to identify how an employee's other relatives or significant others may be impacted by this decision, policies involving the employment of relatives and fraternization should be reviewed.

Finally, employers should continue the best practices of documenting the legitimate, non-discriminatory reasons for taking an adverse employment action. This practice goes a long way toward defeating any potential retaliation claim that may arise.