Most employers know (or should know) to be very careful about taking adverse action against an employee who has filed a claim of employment discrimination. The need for vigilance is even more important following last week’s decision of the United States Supreme Court , holding that Title VII of the Civil Rights Act includes “third-party reprisal” claims. Now, an employee may have a successful retaliation claim if he or she was fired because another employee filed a discrimination complaint.
In Thompson v. North American Stainless, LP, a man was fired after his fiancée filed a sexual discrimination charge against their mutual employer. He, in turn, brought a lawsuit against the company claiming the termination of his employment was in retaliation for his fiancée’s discrimination complaint. The Supreme Court agreed that the man could raise the claim, reversing the decisions of two lower courts that had held that he could not. The Supreme Court held that the man had a right to sue because of his “close relationship” with the woman who filed the original discrimination complaint.
The result may be surprising to some people, perhaps more so because the eight Supreme Court Justices who participated (recently appointed Justice Kagan did not) were unanimous. In reacting to the decision of the Court written by Justice Scalia, Jacquelyn A. Berrien, chair of the Equal Employment Opportunity Commission, expressed approval, stating that the decision “reaffirms the importance of preventing retaliation against those seeking to protect their civil rights.” Read the entire EEOC press release here. As Justice Ginsburg noted in her concurring opinion (in which Justice Breyer joined), the Court’s decision is consistent with the EEOC’s long-standing position.
One of the questions that a business should consider when thinking about firing an employee (or taking any other adverse action) is whether that employee has lodged any discrimination complaints and might later claim that the action was taken in retaliation for the complaint. But until now, many employers were probably concerned only with complaints filed by that particular employee. Now, the employer must also consider complaints that may have been filed by some other person with a close relationship. But what qualifies as a “close relationship?” Unfortunately, the Supreme Court did not completely answer the question, saying only that “firing a close family member will almost always” meet the standard. Because of the facts of the Thompson case, we also know that the relationship between two engaged employees is close enough, but would a dating relationship count? What about a pair of really close friends? Or second cousins, once removed? For now, we can only speculate.
If you have any questions or concerns about these recent changes and how they could impact your small business or nonprofit organization and would like to speak with an attorney, please contact our firm.
Thank you to my friend and colleague, Bruce F. Mills, Attorney at Law, B.F. Mills & Associates, for bringing this issue to my attention.
Michael Smith, Attorney at Law Emily Angel, Legal Assistant