Avoiding Retaliation Claims

The United States Supreme Court recently revisited the issue of retaliation claims in Thompson v. North American Stainless. In the Thompson case, Eric Thompson was fired from his job at North American Stainless, LP (“NAS”) after his fiancé, Miriam Regalado, brought a charge of sex discrimination against her employer . . . also NAS.  Thompson’s termination came only three weeks after his soon-to-be wife filed her charge with the Equal Employment Opportunity Commission (“EEOC”).  Thompson eventually filed a lawsuit against NAS for retaliation, and initially his case was thrown out of court.  Upon review, the United States Supreme Court found that Thompson was entitled to pursue his claims that NAS had retaliated against him because his fiancé had complained of sex discrimination.

Title VII of the Civil Rights Act of 1964 (42 U.S.C. §2000e et seq) provides that “[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has made a charge” under Title VII.  The statute goes on to state that “a person claiming to be aggrieved” can file a charge with the EEOC alleging that the employer committed an unlawful employment practice and if necessary, it allows a civil action to “be brought . . . by the person claiming to be aggrieved . . . by the alleged unlawful employment practice.” 

The U.S. Supreme Court made quick work of the fact that Regalado’s charge of sex discrimination was protected activity and if the facts as alleged by Thompson were true, he should be allowed to sue under Title VII’s anti-retaliation provision.  The Court noted that Title VII’s anti-retaliation provision prohibits any employer action that might dissuade a reasonable worker from making or supporting a claim of discrimination.  For two people who were planning to join their lives (and salaries), firing one of them could certainly dissuade the other from pursuing a claim of discrimination. 

As the Court (and NAS) discussed, the concern becomes that limiting reprisals against third parties could lead to difficult line-drawing problems concerning the types of relationships entitled to protection.  Fiancé, girlfriend, sibling, best friend, close friend, mere co-worker . . . are they all entitled to protection?  In the end, the Court left this question wide open noting that while “firing a close family member will almost always [give rise to a cognizable claim for retaliation] . . . inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize.”

There are three take-away thoughts from the Thompson case.  First, retaliation is a serious issue and taking any adverse employment action against anyone to stymie a discrimination charge is a bad idea.  Second, in order to avoid frivolous claims of retaliation, employers may take a look at the soon-to-be terminated employee’s inner circle to determine whether anyone has engaged in protected activity.  Of course, any employment action should be accurately documented in the employee’s personnel file.  Finally, employers may want to assess their unique work environment and determine whether an anti-nepotism policy is required to avoid the possibility of reprisal claims.