Beware of the Employee Claim of Third Party Retaliation

By: Nathaniel M. Jordan, J.D.

The United States Supreme Court held earlier this year that some victims of "third-party retaliation" can sue their employers. In Thompson v. North American Stainless, Miriam Regalado filed a sex discrimination charge with the Equal Employment Opportunity Commission against her employer, North American Stainless. Three weeks after the EEOC notified NAS of this charge, NAS fired Eric Thompson, who was Regalado's fiancé. Thompson filed a charge with the EEOC and then sued NAS after conciliation efforts were unsuccessful. The United States District Court for the Eastern District of Kentucky found in favor of NAS, writing that Title VII "does not permit third party retaliation claims." And on appeal the Sixth Circuit ultimately affirmed that decision. But then the Supreme Court reversed.

Justice Antonin Scalia wrote for a unanimous Supreme Court, which found that if the facts alleged by Thompson are true, NAS's action against Thompson violated Title VII. The Court observed that Title VII's antiretaliation provision prohibits any employer action that "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." And it decided that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.

Next, the Supreme Court held that Thompson could sue NAS. Title VII provides that "a civil action may be brought . . . by the person claiming to be aggrieved." This means, wrote the Court, that a person may not sue unless he falls within the "zone of interests" sought to be protected by Title VII. It held that Thompson could sue NAS because he fell within that "zone of interests": he was an employee of NAS, and the purpose of Title VII is to protect employees from their employers' unlawful actions. Under the alleged facts, hurting Thompson was NAS's unlawful act used to punish Regalado, so Thompson was a "person aggrieved" with standing to sue.

In issuing Thompson, the Supreme Court did not list the type of relationships that are close enough to allow a third-party claim. Instead, it wrote that, given the broad statutory text and the variety of workplace contexts in which retaliation may occur, Title VII's antiretaliation provision "is simply not reducible to a comprehensive set of clear rules." Firing a close family member will almost always be enough, and "inflicting a milder reprisal on a mere acquaintance" will almost never be. Beyond that the Court was reluctant to generalize.

In the years ahead, lower courts will consider the relationships that may allow for third-party claims. Already, courts have held that spouses or fathers and sons can qualify. What about cousins? Golfing buddies? Facebook friends? Time will tell. For now, employers should be aware of the potential for third-party claims when considering adverse action against an employee. As with all adverse actions, it is important that the reason for taking action against an employee is defensible if later challenged before the EEOC or in court.

Disclaimer: These materials are for informational purposes only and should not be construed as legal advice on any specific facts or circumstances. We recommend you consult a lawyer if you want professional assurance that your interpretation of these materials is appropriate to your particular situation.

 ©  Yoder Ainlay Ulmer & Buckingham, LLP [2011]