The U.S. Supreme Court has made clear that a third party may bring a retaliation claim against an employer under Title VII, broadly interpreting the law’s prohibition of any employer conduct that might dissuade a reasonable worker from making or supporting a charge of discrimination. It can be difficult for an employer to anticipate when disciplinary or other adverse action against a third party may lead to a retaliation claim, because the Court could not draw a line demarking who is in and out of this protected group. The Court has provided some guidance, offering that termination of a close family member will almost always meet the standard while a lesser action against a mere acquaintance will almost never suffice, which leaves a wide swath in the middle. A recent decision of the District of New Hampshire illustrates the difficulty of knowing when a third party is permitted to bring a retaliation claim.
In EEOC v. Fuller Oil (2014 DNH 20, decided 1/31/14), the Court permitted a retaliation claim to go forward where the terminated employee was within “the gray area between a close friend and a casual acquaintance.” The employee was terminated within a few weeks after her co-worker served notice on the company of an intent to file a sexual harassment claim, which the employee claimed was retaliatory. The two women had worked together at another company, the co-worker helped the terminated employee get her job at Fuller Oil, they exchanged cards on special occasions, socialized together outside of work, displayed photos of them together outside work, and were viewed by the employer as being friends. As a result, the Court declined to dismiss the case at an early stage in the proceedings.
When taking adverse action against an employee who is connected to someone involved in a discrimination claim, employers must be mindful of the potential retaliation claim. As it depends on the circumstances, employers must carefully examine the nature of the relationship between the two employees and consider whether the adverse action could be viewed as dissuading a reasonable worker from making or supporting a charge of discrimination. If it could, extra care must be taken to ensure the legitimacy of the adverse action.