On January 24, 2011, the U.S. Supreme Court unanimously held that a man who said he was fired because his fiancée filed a sex discrimination charge against their mutual employer could pursue his claim of retaliation under Title VII of the Civil Rights Act.  Thompson v. North American Stainless LP, No. 09-291 (U.S. Jan. 24, 2011).

Background

Plaintiff Eric Thompson and his fiancée worked for North American Stainless (NAS) in Kentucky.  Three weeks after NAS received notice that Thompson’s fiancée had filed a sex discrimination charge against the company, NAS fired Thompson.  He sued, alleging that NAS had fired him as a means of retaliating against his fiancée for filing a discrimination charge.  The trial court dismissed the case, and the Sixth Circuit Court of Appeals affirmed.  The Sixth Circuit found that Thompson was not “included in the class of persons for whom Congress created a retaliation cause of action” because he had not engaged in protected activity (for example, he had not himself filed a discrimination charge).

Discussion

Title VII states that it is unlawful for an employer to discriminate against “any of his employees” for engaging in “protected activity,” which includes filing a discrimination charge with the EEOC.  The statute allows “a person claiming to be aggrieved” to file a charge and, if the EEOC declines to pursue a lawsuit, to file a lawsuit against the employer.  In this case, the Supreme Court considered two questions.  First, was Thompson’s firing unlawful retaliation?  Second, if it was, did Title VII give Thompson the right to sue?

The Court had “little difficulty concluding” that if the facts Thompson alleged were true, then NAS’s firing of him violated Title VII.  In reaching this conclusion, the Court noted that the anti-retaliation provision of Title VII was meant to prohibit any employer action that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”  The Court thought it “obvious” that a reasonable worker would be dissuaded from filing a discrimination charge if she knew her fiancé would be fired as a result.  Rejecting the employer’s concern that an expansive reading of the anti-retaliation provision would lead to “difficult line-drawing problems” about what types of relationships would be protected, the Court wrote that “a preference for clear rules cannot justify departing from the statutory text.”  The Court also refused to identify a “fixed class of relationships for which third-party reprisals are unlawful,” finding that Title VII’s anti-retaliation provision is “simply not reducible to a comprehensive set of clear rules.” 

The Court also considered whether Thompson was a “person aggrieved” under the language of Title VII, and thus had a right to sue.  The Court rejected two extremes of interpreting the phrase, finding it was neither as broad as the concept of “standing” under the U.S. Constitution (which controls who can sue in federal court on a given issue) nor as narrow as only applying to the employee who personally engaged in protected activity (in this case, the plaintiff's fiancée).  Instead, looking to other statutes and contexts, the Court held 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.”  By adopting this test, the Court held that it would incorporate people intended to be included by Title VII’s language, while excluding plaintiffs who might be technically injured but whose interests were not related to the purposes of Title VII.  The Court found that Thompson fell within the “zone of interests protected by Title VII” because Thompson himself was an employee of NAS, and he was not an “accidental victim of the retaliation.”  In the Court’s view, “hurting [the plaintiff] was the unlawful act by which the employer punished [the fiancée].” 

Significance

It is perhaps an understatement to say, as the Supreme Court said in Thompson, that the law of retaliation is “not reducible to a comprehensive set of clear rules.”  After Thompson, for example, employers can no longer argue that an employee’s retaliation claim automatically fails because the employee did not personally engage in protected activity.  Future court decisions will be necessary to establish the boundaries of the “zone of interests” to which the Supreme Court referred in the Thompson decision.  What is clear, however, is that courts are on the lookout for “creative” forms of retaliation.  When it comes to protected activity, “don’t get mad and don’t get even” remain words for employers to live by.

© 2011 Perkins Coie LLP