January 26, 2011

Supreme Court: door now wide open for third-party retaliation claims under Title VII

Posted in Discrimination, Reprisal, Retaliation, Third Party Claims, Third Party Claims tagged , , , , , , at 9:23 am by Tom Jacobson

In a unanimous decision filed January 24, 2011 the United States Supreme Court has ruled that under Title VII of the Civil Rights Act of 1964, employees may sue for retaliation, even if they themselves never engaged in any protected activity.

Retaliation has always been unlawful under Title VII, but until now such claims have been limited to those cases where employers retaliate against employees who engage in some type of protected activity. For example, if an employer fires an employee because that employee filed a sexual harassment complaint against the company, the employee would have a legitimate claim for retaliation under Title VII.  Now, based on the Supreme Court’s ruling, if that same employer leaves the complaining party alone but takes action against a different employee, the other employee now has a legitimate claim for retaliation under Title VII.

The Supreme’s decision came in the case of Thompson v. North American Stainless, http://bit.ly/hafLvd.  The basic facts of the case were that Eric Thompson and his fiancée, Miriam Regalado, both worked for NAS.  After Regalado filed a sex discrimination charge with the Equal Employment Opportunity Commission (EEOC) against NAS, NAS fired Thompson. Thompson brought a claim under Title VII of the Civil Rights Act, alleging that NAS fired him to retaliate against Regalado for filing her charge.  The trial court threw out Thompson’s claim, and the Sixth Circuit U.S. Court of Appeals agreed with the trial court.  However, the Supreme Court reversed those decisions and ruled that Thompson may proceed with his case.

What is unique about the Thompson v. NAS case is that NAS did not fire the employee who filed the initial discrimination charge (Regalado); it fired her boyfriend (Thompson). In its decision the Supreme Court noted that the anti-retaliation provisions of Title VII must be broadly interpreted. The Court then ruled that “[A]ccepting the facts as alleged, Thompson is not an accidental victim of the retaliation—collateral damage, so to speak, of the employer’s unlawful act. To the contrary, injuring him was the employer’s intended means of harming Regalado. Hurting him was the unlawful act by which the employer punished her. In those circumstances, we think Thompson well within the zone of interests sought to be protected by Title VII.”

The full impact of the Thompson v. NAS case remains to be seen.  However, one outcome is certain:  the door is now wide open for third party employees to sue their employers for retaliation under Title VII.  As a practical matter, this means that before an employer takes any action against an employee, the employer should also take steps to ensure that its decision is not connected in any way to some other employee’s activity that is protected under Title VII.

If you have any questions about this post, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

October 27, 2010

If only we had a crystal ball

Posted in Discrimination, Employee Privacy, Fair Labor Standards Act tagged , , , , , , , , , , at 9:35 am by Tom Jacobson

When it comes to making decisions about employment practices, the goal is always to choose a course that will withstand legal scrutiny.  If we had a crystal ball and could predict how our choices now will be perceived by the courts in the future, those decisions would be much easier to make.   Because no one has that magic foresight, the best we can do is to make decisions based on past precedent and the current state of the law.

However, the United States Supreme Court’s docket does give us a glimpse of things to come, and that docket shows that several important employment-related questions will soon be answered.  One of the most significant cases is Staub v. Proctor which relates to discrimination cases where the actual bias was held by a lower-level company official but the adverse employment decision was made by someone higher up in the organization.  This is often referred to as “cat’s paw” or rubber-stamp liability.  The outcome of this case could have a major impact on how how personnel decisions are made.

The high court will also consider two retaliation cases, Thompson v. North American Stainless LP and Kasten v. Saint Gobain Performance Plastics Corp.  In the Thompson case, the fiance’ of an employee who filed a discrimination charge alleged that he was fired in retaliation for her charge.  The Thompson case could drastically increase the number of “associational” retaliation claims.  Kasten will resolve the question of whether an employee’s unwritten complaint to an employer can provide the basis for a retaliation claim under the Fair Labor Standards Act.

Employee privacy issues are before the court in NASA v. Nelson.  In that case, the concern is a question about illegal drug use asked during a background check.  The court  will also be considering the arbitration of employment claims (AT&T Mobility v. Concepcion), inconsistencies between a summary plan description and the plan itself under the Employee Retirement Income Security Act (CIGNA v. Amara), and an Arizona law that requires Arizona employers to use E-verify and revokes the business licenses of employers who knowingly hire illegal immigrants (Chamber of Commerce of the USA v. Whiting).

If only we had a crystal ball, we could make all personnel decisions knowing that they would withstand legal scrutiny if they were challenged in the future.  For now, the best we can do is make decisions based on what we already know, pay close attention to the ever-changing landscape , and then adjust our course when needed.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

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