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Home / Expert Opinion / Workplace Issues: SCOTUS: Does Title VII protect third-party retaliation?

Workplace Issues: SCOTUS: Does Title VII protect third-party retaliation?

Lindy Korn

Oral argument was heard by the U.S. Supreme Court on Dec. 7, 2010, in the case Thompson v. North Am. Stainless LP, (09-291), in which an employee claims he was fired because his fiancé filed a sex discrimination charge against their mutual employer and that he may sue for retaliation because he is an “aggrieved” individual under the act, as argued by lawyer Eric Schnapper.

The plaintiff, Eric Thompson, a former engineer for North American Stainless LP who was fired three weeks after the company received notice of his finance’s discrimination charge, filed with the Equal Employment Opportunity Commission (the fiancé never did file a Title VII suit). 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. Latherow 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.

“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 (2006), whether the employer’s action would dissuade a reasonable person from making or assisting in a charge of discrimination, provides an important limiting principle.

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. Kruger further argued that the EEOC has long taken the position that either the discrimination claimant or the fired third party has a Title VII retaliation claim.

Justice Ruth Bader Ginsburg pointed out that the American with Disabilities Act expressly protects individuals from employment discrimination because of their association with a person with disabilities, and asked if the plaintiff was asking the court to read a similar provision into Title VII?

Perhaps the test for protecting third parties from “dissuading” others from retaliation may not be due to associational relationships, but rather, acts taken by the employer that are punitive and meant to silence others. 

Watch for the decision of the Supreme Court this term!

Lindy Korn practices at The Law Office of Lindy Korn and can be reached at [email protected] or (716) 856-KORN (5676).