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Supreme Court rules on third-party retaliation: Relatives protected

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in Discrimination and Harassment,Employment Law,Firing

by Michael W. Fox and Tom Barnard, Esqs.

The U.S. Supreme Court has held that an employee who was fired shortly after his fiancée filed a bias charge against their employer may sue for third-party retaliation under Title VII of the Civil Rights Act.

According to the court, the employee could be considered an “aggrieved person” under Title VII because he was “well within the zone of interests sought to be protected by Title VII.”

The case is Thompson v. North American Stainless, LP (No. 09–291, U.S. Supreme Court, 2011). (See “Supreme Court expands retaliation prohibitions.”)

Complaint, then a firing

Eric Thompson and his fiancée, Miriam Regalado, were employees of North American Stainless, LP (NAS). Three weeks after Regalado filed an EEOC sex discrimination charge against NAS, the company fired Thompson.

Thompson then sued NAS under Title VII, claiming the company fired him to retaliate against Regalado for filing her EEOC charge. The case eventually reached the U.S. Supreme Court.

The justices considered two issues:

  1. Did NAS’ firing of Thompson constitute unlawful retaliation?
  2. If so, does Title VII grant Thompson a cause of action?

Protected activity?

The Supreme Court first noted that Regalado’s filing of an EEOC charge constituted “protected activity” under Title VII. The court also assumed that NAS fired Thompson to retaliate against Regalado (which Thompson will be required to prove at trial).

Justice Antonin Scalia, who wrote the court’s opinion, considered whether Thompson’s termination could constitute unlawful retaliation. He concluded that Title VII’s anti-retaliation provision should be construed to cover a broad range of employer actions, including conduct that “might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”

The justices unanimously concluded that it is “obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.”

In so finding, the court rejected the company’s “line-drawing” argument that, according to this standard, employers would be at risk anytime they fire an employee who is connected to an employee who has filed an EEOC charge.

Note: The court refused to identify the types of relationships for which third-party retaliation would be unlawful.

Third-party retaliation?

Turning to the second issue—whether Thompson may sue under Title VII for third-party retaliation—Scalia first noted that Title VII provides that “a civil action may be brought ... by the person claiming to be aggrieved.”

In defining “person aggrieved,” the court relied on a “zone of interests” test. According to the court, a plaintiff may sue if he or she “falls within the ‘zone of interests’ sought to be protected by the statutory provision whose violation forms the legal basis for his complaint.” Conversely, a plaintiff may not sue if his or her interests “are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.”

The court concluded that, since the purpose of Title VII is to protect employees from their employers’ unlawful actions, Thompson fell within the zone of interests protected by the statute.

The court also noted that injuring Thompson was the employer’s alleged means of harming or punishing Regalado. It held that Thompson has standing to sue.


Tom Barnard is a shareholder in Ogletree Deakins’ Cleveland office.

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