In a unanimous decision yesterday, the U.S. Supreme Court expanded the universe of employees who might be protected from retaliation under Title VII and other federal employment laws.
A retaliation claim is based upon an employer’s adverse action taken in response to an employee’s “protected activity”. Typically, protected activity includes things such as making a complaint of discrimination or harassment, or giving information in connection with a harassment investigation. Any adverse action against an employee (or even a former employee) because he engaged in “protected activity” subjects an employer to liability for damages and attorney’s fees.
In Thompson v. North American Stainless, LP, the Supreme Court held that Title VII’s anti-retaliation protection extends to the fiancée of an employee who filed a charge of discrimination with the EEOC. Even though the fiancée himself engaged in no “protected activity”, the Court reasoned the company’s conduct could well dissuade a reasonable employee from herself filing a charge. In other words, if an employee knew her fiancée would be fired in response to her EEOC charge, she might not file the charge.
The practical challenge this case presents for employers is identifying the zone of persons who might be affiliated with a complainant. While acknowledging this difficulty, the Court nonetheless declined to establish a bright line to determine which relationships are protected and which are not. Justice Scalia, writing for a unanimous Court, stated:
We must also decline to identify a fixed class of relationships for which third-party reprisals are unlawful. We expect that firing a close family member will almost always meet the Burlington standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize.
Two immediate takeaways from this case:
First, when going down the road of termination, employers need to inquire whether there is anyone affiliated with the employee to be terminated who has filed a charge of discrimination. Who is affiliated? Certainly a spouse or other close family member; definitely a fiancée. After that, who knows?
Second, just because there is some affiliation does not mean the termination should not occur. The terminated employee is still required to prove a connection between his termination and the protected activity of the other employee with whom he is affiliated.
For other commentary on this decision, I recommend the following:
Daniel Schwartz’s Connecticut Employment Law Blog
Eric Meyer, at The Employer Handbook
IIyse Schuman at Washington DC Employment Law Update
Russell Cawyer, Texas Employment Law Update