Employee alleging dismissal in retaliation for his fiancee’s Title VII complaint has his own Title VII claim against their shared employer

Thompson v. North American Stainless, LP, No. 09-291 (U.S. Jan. 24, 2011)

Abstract: In an 8-0 vote, the U.S. Supreme Court has ruled that an employee who was terminated after his fiancee, who formerly worked for the same employer, filed a sex discrimination complaint against the employer with the federal Equal  Employment Opportunity Commission (EEOC), had a valid claim for retaliation against the employer under Title VII.  Justice Kagan took no part in the consideration or decision of the case.

Writing for the Court, Justice Scalia acknowledged that Article III standing (injury in fact caused by the defendant and remediable in court) alone was insufficient to establish a valid Title VII retaliation claim, concluding that the plaintiff’s alleged injury must be within the zone of interests protected by Title VII.  Thompson met that standard in this case because under the facts alleged, injuring him was the unlawful act by which the employer punished his fiancee.   Justice Ginsburg, joined by Justice Breyer, filed a concurring opinion.

Facts/Issues: Eric Thompson’s fiancée, Miriam Regalado, a former employee of NAS, filed a sex discrimination charge with the EEOC against NAS.  Three weeks later, NAS fired Thompson. Thompson filed his own EEOC charge and a subsequent suit under Title VII,  claiming that NAS fired him to retaliate against Regalado for filing her charge. A federal district court granted NAS summary judgment on the ground that third-party retaliation claims were not permitted by Title VII.  The U.S. Court of Appeals for the  Sixth Circuit (KY, MI, OH,TN), sitting en banc (all active judges participating in consideration and decision of the case),  affirmed, reasoning that Thompson was not entitled to sue NAS for retaliation because he had not engaged in any activity protected by the statute.

Ruling/Rationale: The U.S. Supreme Court reversed the Sixth Circuit’s decision and remanded the case for further proceedings. The Court identified two issues: (1)  did NAS’s firing of Thompson constitute unlawful retaliation?and (2) if it did, does Title VII grant Thompson a cause of action? It found that the answer to the first issue was clear: NAS had engaged in retaliation under the facts as alleged. Relying on the holding in  Burlington N. & S. F. R. Co. v. White, 548 U. S. 53 (2006), that “Title VII’s anti-retaliation provision prohibits any employer action that ‘well might have dissuaded a reasonable worker from making or supporting a charge of discrimination,’” the Court rejected NAS’s argument that it should adopt a categorical rule that third-party reprisals do not violate Title VII.  “We expect that firing a close family member will almost always meet the Burlington standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize.” Nonetheless, it cautioned that “the provision’s standard for judging harm must be objective,” so as to “avoi[d] the uncertainties and unfair discrepancies that can plague a judicial effort to determine a plaintiff’s unusual subjective feelings.”

Turning to the more difficult second issue, the Court determine that Article III standing alone was insufficient to establish a valid Title VII claim. Instead, it adopted the standard enunciated in Lujan v. National Wildlife Federation, 497 U. S. 871, 883 (1990), that a “plaintiff may not sue unless he falls within the ‘zone of interests’ sought to be protected by the statutory provision whose violation forms the legal basis for his complaint.” It held, therefore, “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.” Applying the test to the alleged facts in this case, Scalia wrote:  “Thompson is not an accidental victim of the retaliation—collateral damage, so to speak, of the employer’s unlawful act.  To the contrary, injuring him was the employer’s intended means of harming Regalado.  Hurting him was the unlawful act by which the employer punished her.  In those circumstances, we think Thompson well within the zone of interests sought to be protected by Title VII.  He is a person aggrieved with standing to sue.”

Justice Ginsburg’s concurrence remarked that the Court’s holding squared with EEOC’s long held interpretation that Title VII permits third-party retaliation claims. She also pointed out that “EEOC’s interpretation of Title VII … is consistent with interpretations of analogous statutes by other federal agencies.”

Thompson v. North American Stainless, LP, No. 09-291 (U.S. Jan. 24, 2011)

[The Sixth Circuit's en banc opinion in this case, with a concurrence and three separate dissents, is available at the first link below.

The U.S. Supreme Court has in the past weighed in on the question of third party retaliation claims under federal civil rights statutes. In 2005, the Court  ruled 5-4 that Title IX implies a private right of action for retaliation by individuals who, although not themselves victims of gender discrimination, are victims of retaliation because they complained about gender discrimination suffered by others. The case involved a high school girls' basketball coach who was removed from his coaching position after he complained that his players were being denied equal funding and equal access to sports facilities and equipment. A summary of the opinion is available at the second link below.]

Thompson v. North American Stainless, LP, 567 F.3d 804 (6th Cir. 2009)

NSBA School Law Issues pages on Jackson v. Birmingham Bd. of Educ.

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