Labor & Employment Law

SG urges no cert grant in third-party retaliation case

The US Solicitor General is recommending that the US Supreme Court deny certiorari in Thompson v. North American Stainless, LP. [Details, briefs]

The SG says the lower court's decision was wrong, but there's no split between the circuits.

The Questions Presented in the certiorari petition:

Section 704(a) of Title VII forbids an employer from retaliating against an employee because he or she engaged in certain protected activity. The questions presented are:

(1) Does section 704(a) forbid an employer from retaliating for such activity by inflicting reprisals on a third party, such as a spouse, family member or fiancé, closely associated with the employee who engaged in such protected activity?

(2) If so, may that prohibition be enforced in a civil action brought by the third party victim?

The Solicitor General's arguments: [full brief here]

Certiorari should be denied because the court of appeals? decision, while erroneous, did not create a division in the circuits or a significant gap in the statute?s coverage

A. There is no division in the circuits

B. The court of appeals? decision does not leave a substantial gap in Title VII?s coverage

C. The court of appeals erred in concluding that an employee dismissed because of the protected activity of a closely associated employee cannot maintain a Title VII action

1. Third-party retaliation is an unlawful employment practice

2. Petitioner was ?aggrieved? by the unlawful employment practice he challenged and thus had standing and a cause of action

Full post as published by Ross' Employment Law Blog on May 27, 2010 (boomark / email).