Employer third-party retaliation debated in Supreme Court

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December 16, 2010

Employer third-party retaliation debated in Supreme Court 

In a case that could redefine the reach of Title VII, the justices are considering whether the antidiscrimination statute bars an employer from taking an adverse action against a worker in retaliation for another employee’s protected conduct. The plaintiff claims he was fired after his fiancée filed a gender discrimination complaint against their employer.

By Allison Torres Burtka

Does Title VII of the Civil Rights Act prohibit an employer from inflicting reprisals on an employee in retaliation for someone else’s protected conduct? And may the person who experienced the adverse employment action bring a claim?

These were the questions debated last week in oral arguments before the U.S. Supreme Court, whose decision in the case may redefine the reach of Title VII.

Eric Thompson and Miriam Regalado were engaged, and both worked for North American Stainless in Carroll County, Kentucky. Regalado filed a gender discrimination charge with the Equal Employment Opportunity Commission (EEOC), and the company fired Thompson--an action he says was in retaliation for Regalado’s EEOC charge. (Thompson v. N. Am. Stainless, No. 09-291 (U.S. argued Dec. 7, 2010).)

“If you could retaliate with impunity against third parties, you could scare people off from complaining about discrimination,” said Seattle lawyer Eric Schnapper, who argued the case for Thompson. He added that this is particularly likely when large employers operate in small towns, as in this case.

The district court had granted the company’s motion for summary judgment. A divided Sixth Circuit panel overturned that dismissal, and then the Sixth Circuit reheard the case en banc and upheld the dismissal.

Thompson argued that Title VII covers third-party reprisals, noting in his brief that they “are a method of retaliating against the person who engaged in protected activity.” The EEOC interprets the statute to allow third-party retaliation claims, and the agency’s position is entitled to deference, he argued.

North American Stainless argued that Title VII does not protect Thompson because he was not discriminated against and did not oppose unlawful practices.

At oral argument, in response to Justice Samuel Alito’s questions about how to determine whether someone is “aggrieved” under the statute, Schnapper said that “the plaintiff would have to prove that that was indeed the company’s motive for picking him to fire him” and that the retaliation was “sufficiently serious” to dissuade a reasonable person from complaining.

Questioning Leigh Gross Latherow of Ashland, Kentucky, who argued the case for the defendant, Justice Antonin Scalia said, “I don’t know what ‘aggrieved’ means—I don’t think anybody does. Why shouldn’t we be guided by the EEOC, which has responsibility for implementing this statute? And they’ve come up with their theory of what it means, and we usually do accede to a reasonable theory proposed by the implementing agency.”

Latherow said that “under Thompson’s theory of the case, anyone who is injured . . . becomes a protected party.”

Leondra Kruger, acting principal deputy solicitor general, argued for the United States in support of Thompson. The justices asked how closely associated the third party must be to be protected, and she responded, “I don’t think that there’s any way to fashion a hard and fast rule.” But, when asked whether a close friend would qualify, she said that a reasonable person “may be deterred from engaging in protected activity” if he or she knows that his or her best friend at work would be fired because of it.

Asked why Regalado couldn’t bring suit herself on Thompson’s behalf, Schnapper said that Article III would be a “major obstacle” because she would be suing for damages to be paid to someone else.

AAJ and five other groups filed an amicus brief in support of Thompson. They argued that “it is reasonable for the actual aggrieved employee to challenge the employer’s unlawful action against him” but unreasonable to “force the aggrieved party to rely on another employee to enforce the injured third party’s rights.”


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