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High court opens door to ‘third party’ retaliation

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in Discrimination and Harassment,Employment Law,Firing,HR Management,Human Resources

The U.S. Supreme Court last month widened the circle of people who can bring retaliation lawsuits under Title VII of the Civil Rights Act.

Experts predict the ruling will lead to more retaliation claims. As a result, HR and supervisors everywhere must be extra cautious about handing out discipline or terminations that could be construed as some sort of retaliation.  

The court said it was illegal for a Kentucky company to retaliate against an employee for filing a discrimination complaint by firing her fiancé, who worked at the same company.

Before this Supreme Court action, a lower court had previously dismissed the lawsuit, saying federal anti-retaliation law doesn’t permit employees to sue for retaliation unless they personally engaged in a “protected activity,” such as voicing a job discrimination complaint.

“The easy way to look at the decision is that the zone of protected activity is now expanded beyond the protection of the one who engages in the activity,” said Michael Fox, an attorney with Ogletree Deakins in Austin, Texas.

The Supreme Court case has important implications for all employers, especially now that retaliation claims have surpassed race claims to become the No. 1 job discrimination complaint with the EEOC (see "Give managers a refresher on retaliation risks"). The court’s decision will likely embolden the EEOC to crack down even harder on retaliation.

Details of the case: Two employees at North American Stainless (NAS)—Eric Thompson and Miriam Regalado—were engaged to be married. Soon after Regalado complained to the EEOC about gender bias in the workplace, the company fired Thompson.

Thompson sued, alleging retaliation for supporting his fiancé’s sex discrimination case. When the lower court said Title VII doesn’t protect such “third parties” in retaliation suits, he took his case all the way to the Supreme Court.

The Supreme Court unanimously agreed that Thompson could sue for retaliation. It said Title VII was clearly intended to protect everyone who might be harmed by retaliation, not just those who file discrimination complaints. (Thompson v. North American Stainless, No. 09-291)

Note: The Supreme Court didn’t say everyone who has a relationship with a complaining co-worker might have retaliation protection. Family members almost certainly do, but close friends and trusted co-workers might not.

In light of the Supreme Court’s ruling, employers should tread carefully when contemplating any kind of adverse employment action against the spouse, fiancé or family member of an employee who has engaged in a protected activity.

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