Remember the good ol’ days when you could fire someone based on performance? All you needed was proper documentation. Well, those days are over. The U.S. Supreme Court has created a whole new class of plaintiffs—and added an extra step to your termination checklist…
Case in Point: Eric Thompson and his fiancée, Miriam Regaldo, were both employees of North American Stainless (NAS) in Kentucky. Regaldo filed a sex discrimination claim with the EEOC. Three weeks after the company found out, it fired Thompson, her fiancé.
Thompson fired off his own charge to the EEOC, alleging NAS retaliated against him for supporting his fiancé’s sex discrimination case. In essence, a “third-party” retaliation claim.
NAS defended itself by saying Thompson was fired for performance reasons. And even so, the company said Thompson had no right to file a retaliation claim because it was his fiancée (not himself) that filed a original bias charge.
A lower court agreed with the company. It said Title VII of the Civil Rights Act doesn’t protect such “third parties” in retaliation lawsuits.
The case climbed all the way to the U.S. Supreme Court. The court unanimously ruled that even though Thompson, himself, didn’t file the underlying claim, he was roped in and retaliated against to get under Regaldo’s skin.
As Justice Antonin Scalia wrote, “We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.” (Thompson v. N. Am. Stainless LP, US No. 09-291, 1/24/11)
NAS argued such a decision creates a slippery slope. What about firing an employee’s girlfriend, close friend or trusted co-worker? Who are the next plaintiffs at the water cooler? An employer is at risk “any time it fires any employee who happens to have a connection to a different employee who filed a charge with the EEOC."
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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 might not. Future court rulings will sort that out.
3 Lessons Learned … Without Going to Court
1. Check first. Yup, now before you fire any employee you had better know about their relationships to avoid getting burned in a third-party retaliation lawsuit.
2. Document carefully. This is always a best practice. If you are going to assert poor performance you had better have a wealth of documentation.
3. Never retaliate. Duh! But employers haven’t got the message yet. Last year, the EEOC reported that retaliation claims topped the list of discrimination complaints, even above race discrimination (see chart below). And it’s about to get worse.
Nowadays, the risk of litigation goes beyond firing. When you bring on a new hire, EVERY step of the way – from writing the ad and conducting interviews to checking references and making the offer – can leave you exposed to a crippling lawsuit.
As an employer, hiring and firing are a huge part of your job. And now you can do BOTH free from fear of legal reprisals – IF you know the secrets top HR pros know…
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- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- 10 Secrets to an Effective Performance Review
- Employee handbooks 101: 7 essentials
- 'Cold shoulder' doesn't add up to retaliation
- When hiring, never consider or mention military reserve obligations
- Bosses are first line of defense against unions