|Justice Antonin Scalia|
Justice Alito seemed particularly concerned with this dilemma, asking Plaintiff's counsel:
[D]oes it include simply a good friend? Does it include somebody who just has lunch in the cafeteria every day with the person who engaged in the protected conduct? Somebody who once dated the person who engaged in the protected conduct?The Plaintiff in this case, Thompson, essentially argues that it can be anyone, so long as the Burlington Northern test is met (employer's action well might have dissuaded a reasonable worker from making or supporting a charge of discrimination).
Acting Deputy Solicitor General, Leondra Kruger on behalf of the United States, faced similar questioning from Alito:
[W]hat is the employer supposed to do . . . . Do you call everybody in from the company and you say, now, is -- you know, was -- are these people dating? Did they once date? Are they good friends? What are you supposed to do?If Thompson wins (and Paul Secunda at Workplace Prof Blog predicts an 8-1 ruling in his favor), then employers will face a real problem in determining which employees pose a retaliation risk following a discrimination complaint.
Even if Thompson loses, there is still a possibility that the complaining employee can file suit based on the employer's action against someone to whom he or she has some relation (or relationship). As Justice Scalia points out, if the original complainant can file suit:
Then we still have the same problem, that the employer doesn't know whom he has to treat with kid gloves.I guess "kid gloves" is one way to put it. But yes, Scalia has a point in that employers will have trouble evaluating the retaliation risk of their employees.
The outcome of this case is not as important as the rule the court lays down. Hopefully it will provide some guidance to employers wishing to analyze associational retaliation risks. Regardless of the outcome, I'm guessing serious questions will remain.
Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor & employment law practice groups.