Why Can't We Be Friends? – The Expanding Scope Of Third Party Retaliation Claims

by Baker Donelson
Contact

Of all workplace discrimination claims employers are likely to face, retaliation claims top the list, comprising over one-third of all claims filed with the EEOC in recent years. The reason for their prevalence is that employees often raise such claims in conjunction with primary discrimination claims. Traditionally, discrimination claims were based on (1) alleged adverse employer action against an employee of a protected class (age, gender, disability, race, etc.), or (2) an employer action taken in retaliation against an employee based on that same employee’s opposition to an unlawful practice. In recent years this later claim of retaliation has been generally extended to cover other employees that are related to the employee who opposes the unlawful practice. This is known as third-party retaliation.

Readers may recall that in 2011, the Supreme Court settled much controversy as to the viability of third-party claims, especially those based on Title VII of the Civil Rights Act, by holding in essence that “firing a close family member [of a complainant] will almost always” permit a claim for unlawful third-party retaliation, and that “inflicting a milder reprisal on a mere acquaintance will almost never do so.” Thompson v. North American Stainless, LP, 131 S. Ct. 863 at 868 (2011). After the buzz surrounding Thompson faded, third-party retaliation may have slipped from some employers’ radar. However, the field has continued to emerge based on different co-employee relationships and a myriad of federal and state statutes, many with slightly different language. Courts since Thompson have each had to perform their own independent factual analysis under various laws. It is important for employers to continue to monitor the continuing expansion of such claims.

For instance, a court in New Hampshire recently held that a co-worker relationship falling within “that gray area between a close friend and a casual acquaintance,” was sufficient to allow a Title VII sexual-harassment-based retaliation claim to go forward, finding that the co-worker had aided the terminated employee in obtaining the employment, and that they had socialized outside of the workplace on occasion. EEOC v. Fuller Oil Co, Inc., Civ. Action No. 1:13-cv-295 (D.N.H., January 31, 2014). Also, in a recent Alabama case, a mere dating relationship was sufficient to allow a Title VII retaliation claim to continue. Lard v. Alabama Alcoholic Beverage Control Bd., NO.2:12-CV-452-WHA, 2012 WL 5966617 (M.D. Ala., Nov. 28, 2012). Lastly, in Florida, a court held that spouses who were employed by different employers were within the class of persons protected by the Title VII’s anti-retaliation provisions. There, the husband worked for a subcontractor of the wife’s employer, and his physical workspace was at the wife’s employer’s facility. Based on these facts, the court found that retaliation may have occurred. McGhee v. Healthcare Services Group, Inc., NO. 5:10-CV-279-RS-EMT, 2011 WL 5299660 (N.D. Fla., Nov 2, 2011).

Results may differ under other labor laws, however. For example, in Ohio a court denied a claim for retaliation against a relative of a FMLA claimant. The District Court judge reasoned that even though “the FMLA often borrows from Title VII jurisprudence, there are limitations” and that “[i]n contrast to Title VII, the FMLA delineates certain specific classes of individuals who may bring an action — those who have been denied a right protected by the Act ("interference" plaintiffs) and those who opposed an employer's unlawful action under the Act ("retaliation" plaintiffs). This, of course, reflects the narrower reach of the FMLA." Gilbert v. St. Rita’s Professional Services, LLC, 2012 WL 2344583 at *6 (N.D. Ohio, June 20, 2012) (citation omitted). 

In light of these developments, modern employers will have to do more than circulate an office dating policy to minimize the risk of third-party retaliation claims. The employer should always be aware of how taking an adverse employment action with respect to one employee may be viewed by a federal labor investigator (or worse, a federal judge!) as a reprisal for another employee’s choice to exercise their federal employment rights.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Baker Donelson | Attorney Advertising

Written by:

Baker Donelson
Contact
more
less

Baker Donelson on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.