Associational Discrimination: Supreme Court Decides Thompson v. North American Stainless
On January 24, 2011, the United States Supreme Court decided the case of Thompson v. North American Stainless, LP, No. 09-291. The Court unanimously (8-0, with Justice Kagan recusing herself) reversed the 10-6 en banc decision from the Sixth Circuit. The Supreme Court held that Title VII’s anti-retaliation provision reached a Charging Party’s fiancé. The decision’s significant practical ramifications are discussed at the conclusion of this article.
The facts of this case are straightforward. The defendant company, North American Stainless (NAS) terminated one of its employees, Miriam Regalado. She filed a Charge of Discrimination with the EEOC, claiming that she had been discharged on the basis of gender in violation of Title VII’s prohibition against sex discrimination. Three weeks after Regalado filed her Charge, NAS also terminated her fiancé, Eric Thompson. Thompson then independently filed a Charge of Discrimination with the EEOC, claiming that he was a victim of retaliatory conduct by NAS.
The District Court for the Eastern District of Kentucky granted NAS summary judgment, concluding that Title VII “does not permit third party retaliation claims.” The Sixth Circuit initially reversed this determination, but following a rehearing by the entire intermediate appellate court, the en banc court flipped the panel’s determination and affirmed the District Court’s dismissal of the case. The Sixth Circuit concluded that because Thompson did not “engag[e] in any statutorily protected activity, either on his own behalf or on behalf of Miriam Regalado,” he “is not included in the class of persons for whom Congress created a retaliation cause of action.” (I previously analyzed the Sixth Circuit’s opinion in an earlier Blog posting; see Quirky Question # 99, Retaliation Against Fiancé.)
The Supreme Court granted review of the Sixth Circuit’s decision. For the purposes of the Supreme Court’s analysis, the Court assumed that NAS had fired Thompson to retaliate against Regalado for filing her Charge of Discrimination. The Supreme Court evaluated two related questions: did NAS’s firing of Thompson constitute unlawful retaliation; and, if it did, does Title VII provide Thompson a cause of action?
High Court’s Decision
The nation’s high court had, by its own characterization, “little difficulty” with the first question, finding that NAS’s firing of Thompson violated Title VII. The Court pointed out that, as it previously had held in Burlington N. & S. F. R. Co. v. White, 548 U.S. 53 (2006), Title VII’s anti-retaliation provision “must be construed to cover a broad range of employer conduct.” As the Court had determined in Burlington, the anti-retaliation provisions of Title VII were considerably broader than Title VII’s substantive anti-discrimination provisions. The Court noted that the anti-retaliation provision prohibits an employer from “discriminating against any of his employees” for engaging in protected conduct, without specifying the acts of the employer that are proscribed. As the Court had held in Burlington, Title VII’s anti-retaliation provision prohibits conduct that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” The Court went on to state that “[w]e think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.”
NAS made the slippery slope argument that a holding for Thompson would “place the employer at risk any time it fires any employee who happens to have a connection to a different employee who filed a charge.” While acknowledging the “force” of this argument, the Supreme Court nonetheless rejected it, stressing that there is “no textual basis for making an exception for third-party reprisals, and a preference for clear rules cannot justify departing from statutory text.”
Importantly, the Court also rejected the invitation to define a “fixed class of relationships for which third-party reprisals are unlawful.” Recognizing the opposite ends of the spectrum (a close family member v. a “mere acquaintance”), the Court concluded that it could not generalize and that future cases will turn on their individual facts. “Given the broad statutory text and the variety of workplace contexts in which retaliation may occur, Title VII’s antiretaliation provision is simply not reducible to a comprehensive set of clear rules.” (Emphasis added.) The Court did emphasize, however, that the provision’s standard “for judging harm must be objective.”
The Court next turned to what it characterized as the “more difficult” question – whether Thompson had the right to sue NAS for its alleged Title VII violation. The Court began with the language of the anti-retaliation provision – “a civil action may be brought . . . by the person claiming to be aggrieved.” 42 U.S.C. § 2000e-5(f)(1). The Court then considered and repudiated its past dictum in an earlier case, Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205 (1972), which suggested that anyone who met Article III standing requirements (injury in fact, caused by the defendant, and remediable in court) could assert a Title VII claim. The Court found that the “aggrieved” employee language must be construed more narrowly than the outer boundaries of Article III.
Drawing on language from and analogous rulings regarding the Administrative Procedure Act, the Court established a new framework for determining whether the Charging Party met the definition of an “aggrieved” person under Title VII. After referencing other decisions involving a “zone of interest” standard (i.e., does the individual fall within the ‘zone of interests’ sought to be protected by the statutory provision whose violation forms the legal basis of the complaint), the Court adopted this as the standard. “We hold that the term ‘aggrieved’ in Title VII incorporates this test, enabling suit by any plaintiff with an interest ‘arguably [sought] to be protected by the statutes.’” (Citations omitted.) This formulation would exclude individuals who might “technically be injured in an Article III sense but whose interests are unrelated to the statutory prohibitions in Title VII.”
Having established this analytical framework, the Supreme Court found that Thompson was encompassed because he was within the “zone of interests” protected by Title VII. He was employed by NAS. The purpose of Title VII is to protect employees from their employers’ unlawful actions. Making the assumption that NAS intentionally retaliated against Thompson’s fiancé, Regalado, by firing him, the Court observed, “Hurting him was the unlawful act by which the employer punished her.” In this context, Thompson was an aggrieved person, with standing to sue. (Justice Ginsburg, along with Justice Breyer, filed a brief concurrence also pointing out that the Court’s decision was supported by the EEOC’s Compliance Manual, which was entitled to deference.)
The Thompson holding does raise some legitimate concerns for employers.
First, as the Court acknowledged, neither the statutory language nor the decision itself provides clear guidance to employers regarding who has standing to sue. As I have discussed in other Blog postings, “associational discrimination” claims cover the spectrum. A Charging Party’s spouse clearly is covered. A Charging Party’s son/daughter may be covered. Thompson demonstrates that a Charging Party’s fiancé is covered. How about two employees living together? Dating? How many dates – two, five, ten, some other number? How “significant” must the “significant other” be? These issues will be left to future cases and future fact patterns.
Second, I have serious concerns (admittedly from a defense perspective) about whether these cases will be susceptible to summary judgment. It will not be difficult for a plaintiff’s lawyer to raise factual questions regarding just how “close” the relationship between the Charging Party and the other employee who suffers some adverse job action may be. Will all these cases have to be tried to a jury?
Third, while there is little dispute that the original Charging Party (here, for example, Regalado), could amend her Charge to allege an act of retaliation against her, the Thompson decision has created an independent cause of action for the other party in the relationship (here, Thompson). In other words, Regalado had sued for sex discrimination. When her fiancé was fired three weeks after she filed her Charge of Discrimination, she already could have returned to the EEOC and amended her Charge, pointing out (as the Court did), that the company tried to hurt her further by penalizing someone she loved. But, now, that person (spouse, child, fiancé, other) also has a direct retaliation claim against the employer.
Fourth, the spouse/child/fiancé/friend already was protected if he/she engaged in any conduct encompassed by the statutory protections. In other words, by way of example, if that person “opposed” any practice encompassed by Title VII, or “participated” in any practice encompassed by Title VII, he/she already was protected by the statute’s anti-retaliation provision. Now, that individual also is protected because of his/her familial “status” or friendship “status.” Employers will be obligated to establish that whatever adverse job action they took toward that individual had nothing to do with his/her status or the fact that his/her family member or significant other previously had sought Title VII protection. This may be a tough sell to a plaintiff-oriented jury, particularly if the two events (the Title VII Charge and the adverse action) are in temporal proximity. (Curiously, in rejecting Thompson’s claim, the Sixth Circuit emphasized that Thompson wanted it to “become the first circuit court to hold that Title VII creates a cause of action for third-party retaliation on behalf of friends and family members who have not engaged in protected activity. However, we decline the invitation to rewrite the law.” The Supreme Court apparently did not feel equally constrained.)
Fifth, returning to the first point above, how broad is the “zone of interest”? Is an “arguable” (the language used by the Court) interest enough? Wouldn’t any employee of the same employer, who had any type of relationship with the Charging Party (other than, as the Court put it, a “mere acquaintance”) be able to argue that he/she deserved protection from the anti-retaliation provision?
Finally, employers should consider carefully how the Thompson decision will affect their policies and procedures regarding treatment of spouses, fiancés, partners, close friends, etc., when the other member of the family or couple or close friend has filed a Charge of Discrimination. Will the approach be business as usual? Will some higher or more methodical review process be necessary prior to taking any adverse action against the non-Charging Party? Should some notation be placed in the HR file so that an HR representative can fully assess the risks when reviewing a proposed adverse action against an arguably affected employee? These and other questions require additional thought. Unfortunately, ignoring these issues will expose companies to increased risks of retaliation claims in the future.