Wednesday, June 30, 2010

Third Party or Associational Retaliation

Yesterday, the Supreme Court granted certiorari, agreeing to hear Thompson v. North American Stainless on appeal from the Sixth Circuit en banc. Lawffice Space readers may remember my analysis of this case in Fire the Fiancé - Third Party Retaliation Claims.

The Petition for Certiorari (via SCOTUSblog) lists the question presented to the Supreme Court as:
Section 704(a) of Title VII forbids an employer from retaliating against an employee because he or she engaged in certain protected activity. The questions presented are:

(1) Does section 704(a) forbid an employer from retaliating for such activity by inflicting reprisals on a third party, such as a spouse, family member or fiancé, closely associated with the employee who engaged in such protected activity?

(2) If so, may that prohibition be enforced in a civil action brought by the third party victim?
For Third Circuit (binding in Pennsylvania federal courts) analysis of this issue, see Fogleman v. Mercy Hospital.

In Fogleman, the Court addressed ADEA, ADA, and PHRA retaliation claims brought by the son of a man who filed an age and disability discrimination lawsuit. Son and father worked for the same employer which fired the son after the father's claims. The Court held that:
[T]he District Court was correct to reject as a matter of law [son's] third-party retaliation claims brought under the ADEA, the PHRA, and the first anti-retaliation provision of the ADA, 42 U.S.C. § 12203(a).
Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 570 (3d Cir. 2002). However, the Court also held that "[Plaintiff] may assert his third-party retaliation claim under this section (the 'second anti-retaliation provision' 42 U.S.C. § 12203(b)) of the ADA."

And now, it appears the Supreme Court will weigh in on associational retaliation.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.