U.S. High Court Recognizes Title VII Third-Party Retaliation Claim

In September 2002, Regalado filed an EEOC charge of sex discrimination under Title VII. NAS learned of the charge in February 2003 and, three weeks after it learned of the charge, the company terminated Thompson for what it stated were performance reasons. Thompson, who himself had never opposed any allegedly discriminatory practice or otherwise engaged in statutorily “protected activity,” brought suit against NAS in the U.S. District Court for the Eastern District of Kentucky, alleging that his termination was in retaliation for Regalado's discrimination charge.

The district court granted summary judgment to NAS, finding that Thompson could only pursue a retaliation claim against his employer if he, himself, had engaged in “protected activity,” and that his failure to do so was fatal to his suit. The Sixth U.S. Circuit Court of Appeals affirmed, and noted that no other circuit court of appeals had recognized a claim for third-party retaliation where the plaintiff had not himself engaged in protected activity. To the contrary, the court noted, the Third, Fifth and Eighth circuits had all rejected such claims.

Burlington Northern Cited

On appeal, the Supreme Court made two principal rulings. First, the justices held that Thompson's termination could constitute actionable retaliation against Regalado. Applying the standard announced in Burlington Northern & Santa Fe R.Co. v. White, the Court found that terminating a complaining employee's fianc' could dissuade her from engaging in protected activity, and that, therefore, Thompson's firing gave rise to a retaliation claim by Regalado.

As it did in the Burlington Northern case, the Court contrasted the discrimination prohibition in Title VII with the statutory language prohibiting retaliation, and cited Burlington Northern in finding that “the antiretaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment. Rather, 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.”

The Supreme Court rejected NAS's argument that, while terminating an employee's fianc' would meet the Burlington standard, prohibiting reprisals against third parties could lead to difficult line-drawing problems concerning the types of relationships protected. For example, could terminating a close friend of an employee or a girlfriend create a cause of action? The Court responded with a firm “maybe,” finding that the “significance of any given act of retaliation will often depend upon the particular circumstances.”

'Zone of Interests' Applied To Title VII

Second, the Court answered the “more difficult question” of whether Thompson could sue NAS for retaliation, despite the fact that he did not engage in “protected activity.”

In addressing this question, the Court noted the extremes of statutory interpretation advocated by each party. That is, Thompson argued that the statute's requirement that suit be brought by “the person claiming to be aggrieved” should be read broadly, such that any person who is allegedly injured by the retaliation could bring suit. On the other hand, NAS contended that “person aggrieved” refers “only to the employee who engaged in the protected activity.” This was too narrow a reading.

Rather, the Court held that Thompson was a person “claiming to be aggrieved” under the applicable law by adopting the “zone of interests” test first articulated in the Lujan v. Wildlife Federation case. The Court applied the “zone of interests” test to Thompson and found that, assuming the facts alleged to be true, he is “not an accidental victim of the retaliation ' collateral damage, so to speak, of the employer's act. To the contrary, injuring him was the employer's intended means of harming Regalado.” As such, under the circumstances, Thompson fell “within the zone of interests protected by Title VII.”

Conclusion

Retaliation claims, as has often been noted, are the most dangerous and powerful of allegations under Title VII. The Thompson decision has the potential to dramatically expand the scope of such claims and it is certain that courts will be wrestling with the boundaries of the decision in the coming years ' both with respect to the relationships covered by the “circumstances” and whether the plaintiff is within the “zone of interests” covered by the act.

Sid Steinberg is a partner in Post & Schell's business law and litigation department. He concentrates his national litigation and consulting practice in the field of employment and employee relations law. This article also appeared in The Legal Intelligencer, an ALM sister publication of this newsletter.

In Thompson v. North American Stainless LP, the U.S. Supreme Court recognized, for the first time, a cause of action for “third-party retaliation” under Title VII of the Civil Rights Act of 1964.

Fianc' Fired

Eric Thompson and Miriam Regalado were both employees of North American Stainless (NAS), and were engaged to be married. NAS was aware of their relationship and their wedding plans.

In September 2002, Regalado filed an EEOC charge of sex discrimination under Title VII. NAS learned of the charge in February 2003 and, three weeks after it learned of the charge, the company terminated Thompson for what it stated were performance reasons. Thompson, who himself had never opposed any allegedly discriminatory practice or otherwise engaged in statutorily “protected activity,” brought suit against NAS in the U.S. District Court for the Eastern District of Kentucky, alleging that his termination was in retaliation for Regalado's discrimination charge.

The district court granted summary judgment to NAS, finding that Thompson could only pursue a retaliation claim against his employer if he, himself, had engaged in “protected activity,” and that his failure to do so was fatal to his suit. The Sixth U.S. Circuit Court of Appeals affirmed, and noted that no other circuit court of appeals had recognized a claim for third-party retaliation where the plaintiff had not himself engaged in protected activity. To the contrary, the court noted, the Third, Fifth and Eighth circuits had all rejected such claims.

Burlington Northern Cited

On appeal, the Supreme Court made two principal rulings. First, the justices held that Thompson's termination could constitute actionable retaliation against Regalado. Applying the standard announced in Burlington Northern & Santa Fe R.Co. v. White, the Court found that terminating a complaining employee's fianc' could dissuade her from engaging in protected activity, and that, therefore, Thompson's firing gave rise to a retaliation claim by Regalado.

As it did in the Burlington Northern case, the Court contrasted the discrimination prohibition in Title VII with the statutory language prohibiting retaliation, and cited Burlington Northern in finding that “the antiretaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment. Rather, 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.”

The Supreme Court rejected NAS's argument that, while terminating an employee's fianc' would meet the Burlington standard, prohibiting reprisals against third parties could lead to difficult line-drawing problems concerning the types of relationships protected. For example, could terminating a close friend of an employee or a girlfriend create a cause of action? The Court responded with a firm “maybe,” finding that the “significance of any given act of retaliation will often depend upon the particular circumstances.”

'Zone of Interests' Applied To Title VII

Second, the Court answered the “more difficult question” of whether Thompson could sue NAS for retaliation, despite the fact that he did not engage in “protected activity.”

In addressing this question, the Court noted the extremes of statutory interpretation advocated by each party. That is, Thompson argued that the statute's requirement that suit be brought by “the person claiming to be aggrieved” should be read broadly, such that any person who is allegedly injured by the retaliation could bring suit. On the other hand, NAS contended that “person aggrieved” refers “only to the employee who engaged in the protected activity.” This was too narrow a reading.

Rather, the Court held that Thompson was a person “claiming to be aggrieved” under the applicable law by adopting the “zone of interests” test first articulated in the Lujan v. Wildlife Federation case. The Court applied the “zone of interests” test to Thompson and found that, assuming the facts alleged to be true, he is “not an accidental victim of the retaliation ' collateral damage, so to speak, of the employer's act. To the contrary, injuring him was the employer's intended means of harming Regalado.” As such, under the circumstances, Thompson fell “within the zone of interests protected by Title VII.”

Conclusion

Retaliation claims, as has often been noted, are the most dangerous and powerful of allegations under Title VII. The Thompson decision has the potential to dramatically expand the scope of such claims and it is certain that courts will be wrestling with the boundaries of the decision in the coming years ' both with respect to the relationships covered by the “circumstances” and whether the plaintiff is within the “zone of interests” covered by the act.

Sid Steinberg is a partner in Post & Schell's business law and litigation department. He concentrates his national litigation and consulting practice in the field of employment and employee relations law. This article also appeared in The Legal Intelligencer, an ALM sister publication of this newsletter.