In Thompson v. North American Stainless, LP (2011), the U.S. Supreme Court gave its stamp of approval to third-party retaliation claims under Title VII of the Civil Rights Act. The Court thereby resolved a conflict among the circuit courts of appeal and potentially opened the floodgates to allow an even greater number of retaliation claims—already the most frequent type of Equal Employment Opportunity Commission (EEOC) charge—to be brought against employers. Going forward, employers need to be aware of the manner in which this decision has expanded the list of potential retaliation claimants so that they can minimize their exposure to such relationship-based claims. To see our National eAuthority on the ruling, click here.
In this case, the plaintiff, Eric Thompson, and his fiancée, Miriam Regalado, were both employed by North American Stainless. Regalado filed a charge of sex discrimination against North American Stainless with the EEOC. Just three weeks after Regalado filed her charge, North American Stainless terminated Thompson’s employment. Thompson subsequently brought a lawsuit against North American Stainless, alleging that it fired him to retaliate against his fiancée for filing a charge with the EEOC.
Supreme Court’s Opinion in North American Stainless
The Supreme Court’s opinion in North American Stainless answers two significant questions about Title VII retaliation claims that were disputed by the courts below. First addressing the question of whether North American Stainless’s firing of Thompson constituted unlawful retaliation, the Supreme Court reasoned that—unlike Title VII’s anti-discrimination provision—Title VII’s retaliation provision was “not limited to actions that affect the terms and conditions of employment.” Thus what constitutes retaliation must be broadly construed to encompass any actions by an employer that would dissuade a reasonable person from making or supporting a discrimination charge. Applying this broad definition of retaliation, the Supreme Court concluded that Thompson’s termination constituted unlawful retaliation and opined that it was “obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.”
Turning to the second and weightier question of whether Thompson had standing under Title VII to sue North American Stainless, the Supreme Court looked to the Administrative Procedures Act for guidance on whom Congress intended to protect when it chose the phrase “person aggrieved” and adopted its “zone of interest” test. Applying that same zone of interest test to Thompson’s claim, the Court held that Thompson had sufficient standing to assert his retaliation claim because the purpose of Title VII is to protect employees from their employers’ unlawful actions, and Thompson was clearly an employee and “not an accidental victim of the retaliation.” While acknowledging North American Stainless’s argument that recognizing third-party retaliation claims such as Thompson’s would create line-drawing problems for employers, the Supreme Court dismissed this concern as insufficient to justify a categorical rule that third-party reprisals do not violate Title VII. However, the Supreme Court declined to identify a fixed set of relationships for which third-party retaliation might be actionable, instead providing only the generalized guidance “that firing a close family member will almost always” constitute actionable third-party retaliation, whereas “inflicting a milder reprisal on a mere acquaintance will almost never do so.”
Practical Impact for Employers
The Supreme Court’s decision in North American Stainless is significant not only for its holdings but also for the questions that it leaves unanswered. Following North American Stainless, it is clear that the number of potential retaliation claimants has been expanded to include third parties, and that this expanded class will likely translate into an increased number of retaliation claims brought against employers. But just what type of associations will be deemed sufficient to render a third-party retaliation claim actionable remains unsettled—and will remain unsettled—until the district courts have had an opportunity to winnow out the intended pool of claimants who may bring such relationship-based claims. For now, the only guidance that may be gleaned from the Supreme Court’s decision is that third-party standing will turn on some undefined weighing of the closeness of the association and the severity of the retaliatory act.
Despite the scope and application questions that remain unanswered in the wake of North American Stainless, employers should take action now to make sure that their managers and human resource partners are trained on the subject of third-party retaliation. Although an employer’s awareness of a close relationship between a complainant and another employee certainly does not prohibit an employer from taking adverse action against the related employee where justified, such awareness does render the employer’s documentation and consistency in terminating and/or disciplining its employees all the more important for purposes of countering potential third-party retaliation arguments later on. However, purposefully seeking out employee-relationship information is not advised because employers may be able to use their lack of knowledge of a relationship as a defense in subsequent litigation. In addition to training on these third-party retaliation issues, employers should consider reviewing their retaliation policies to make sure that the stated definition of retaliation in their handbooks is expansive enough to encompass any retaliatory actions taken against third parties who are not themselves complainants.
Ashley A. Wenger is an associate in the Minneapolis office of Ogletree Deakins.