Supreme Court Says Title VII's Anti-Retaliation Provision Allows for Third-party Retaliation Claims
01.01.00Does Title VII's anti-retaliation provision allow for third-party retaliation claims? Yes, according to the U.S. Supreme Court's recent decision in Thompson v. North American Steel, LP, 131 S. Ct. 863 (2011). In the wake of this decision, employers must not only be aware of the protected conduct of employees being considered for discipline or termination, but also of the protected conduct of other employees with whom those being disciplined or terminated have a close personal relationship. If employers aren't careful, they may find themselves as named defendants in a third-party retaliation claim.
The Supreme Court's decision in Thompson has far reaching implications for employers. Can you summarize the main points?
Most employers already know that Title VII's anti-retaliation provision prohibits them from taking any action that might discourage a reasonable employee from making or supporting a charge of discrimination based on race, color, religion, sex or national origin. In Thompson, the Court extended the protections of Title VII's anti-retaliation provision to employees who themselves have not engaged in protected conduct, but who have a close personal relationship (i.e., a dating or familial relationship) with another employee who has. What this basically means is that employers now risk being sued anytime they fire or otherwise discipline an employee who has a close relationship with another employee who has engaged in conduct protected by Title VII.
What happened in the Thompson case?
In Thompson, employer North American Stainless terminated Eric Thompson three weeks after his co-worker and fiancée, Miriam Regalado, filed a charge of sex discrimination with the Equal Employment Opportunity Commission against the company.
Thompson sued, claiming North American fired him in retaliation for Regalado’s protected activity of filing an EEOC charge. Without addressing the merits of Thompson’s claim, the Court held that if his allegations were true, his firing violated Title VII.
While the Court acknowledged that allowing retaliation claims against third parties would lead to difficult line-drawing problems as to the types of relationships entitled to protection, the Court refused to adopt a clear rule concerning what third parties are protected. Instead, the Court endorsed a case-by-case analysis.
Most importantly, though, the Court held that Thompson had standing to sue North American for its alleged violation of Title VII since he fell within the “zone of interests” sought to be protected by the statute.
What do you see as being the biggest challenge to employers and what can they do?
The biggest challenge facing employers will be keeping track of their employees’ close personal relationships with other employees. To meet this challenge, employers may consider including a question on their employment applications asking applicants whether they have a close personal relationship with another employee. Employers may also consider having employees update this information on a yearly basis, perhaps at the time of employees’ annual performance reviews. In any event, employers should review their employees’ applications and personnel files as a part of any termination or disciplinary process. Further, employers should make sure they have specific, clear and well-documented reasons for terminating or otherwise disciplining an employee. Finally, employers should ensure that all disciplinary decisions are based on lawful reasons and that disciplined employees are treated the same as similarly situated employees.
Are there other ways that employers can keep tabs on employees’ social lives?
This could be tricky. Requiring employees to update information in their personnel files on a regular basis could prove cumbersome. Also, tracking employees through social media could raise privacy and other civil rights concerns, including freedom of speech. Before going down that road, I strongly recommend seeking legal advice.