Monday, January 24, 2011

SCOTUS Decides "Fire the Fiance" 3rd Party Retaliation

Earlier today, the Supreme Court issued a unanimous (minus Justice Kagan who did not participate) opinion in Thompson v. North American Stainless (opinion here). I previously covered the Sixth Circuit opinion in this case in Fire the Fiance - Third Party Retaliation Claims. To recap: Miriam Regalado filed a sex discrimination charge with the EEOC and her employer then fired her fiance, Eric Thompson, who worked for the same employer. Thompson then filed a retaliation lawsuit.

The Court decided two questions:
  1. Does firing Thompson, who did not file the initial charge, constitute unlawful retaliation?
  2. Does Title VII grant Thompson a cause of action?
The Court finds question one to be an easy one. Restating the standard established in Burlington N. & S. F. R. Co. v. White, 548 U. S. 53 (2006): "Title VII’s antiretaliation pro­vision prohibits any employer action that 'well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.'" And, the Court states:
We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.
So, yes, firing the fiance constitutes unlawful retaliation.

The Court then turns to the "more difficult question" of whether Title VII actually affords Thompson a cause of action here. The Court holds that an individual may not sue unless he "falls within the 'zone of interests' sought to be protected" by Title VII. Applying this test, the Court notes that Thompson was an employee of the defendant and "the purpose of Title VII is to protect employees from their employers’ unlawful actions." Furthermore, Thompson was not "collateral damage" of the employer's unlawful act but rather the intended means of enacting its retaliation against his fiancee. So, yes, Thompson does have a cause of action.

Recall that oral arguments focused much attention on who exactly would be protected if Title VII provided a cause of action for  "third party" retaliation. As I asked in a blog entry on the subject, Who Gets Scalia's Kid Gloves? Well, Scalia wrote the opinion of the Court and offered this guidance:
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.
Put another way: Some people sometimes and other people other times. Sorry employers, it depends on the circumstances. The test, however, is the Burlington standard reiterated above.

Lastly, a quick note that Justice Ginsburg, joined by Justice Breyer, filed a concurring opinion to add that the Court's decision is "fortif[ied]" by the EEOC's Compliance Manual which is due some deference.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.