Labor & Employment Law

Third party retaliation: SCOTUS will decide Thompson v. North American Stainless

The US Supreme Court this morning granted certiorari in Thompson v. North American Stainless, to decide whether Title VII creates a cause of action for third-party retaliation for persons who did not themselves engage in protect activity.

[Details, briefs]

In a 10 to 6 decision (that's a lot of judges), the 6th Circuit decided that Title VII does not create a cause of action for third-party retaliation for persons who did not themselves engage in protect activity.

Facts: Eric Thompson claimed he was fired because his fiancée filed an EEOC charge. From February 1997 through March 2003, Thompson, worked as a metallurgical engineer for North American Stainless, LP, the owner and operator of a stainless steel manufacturing facility in Carroll County, Kentucky. Thompson met Miriam Regalado, currently his wife, when she was hired by the employer in 2000, and the couple began dating shortly thereafter. At the time of Thompson?s termination, he and Regalado were engaged to be married, and their relationship was common knowledge at North American Stainless. According to the complaint, Regalado filed a charge with the Equal Employment Opportunity Commission (EEOC) in September 2002, alleging that her supervisors discriminated against her based on her gender. On February 13, 2003, the EEOC notified North American Stainless of Regalado?s charge. Slightly more than three weeks later, on March 7, 2003, North American Stainless terminated Thompson?s employment.

Thompson alleged that he was terminated in retaliation for his then-fiancée?s EEOC charge, while North American Stainless contended that performance-based reasons supported the plaintiff?s termination.

Thompson sued the employer for violation of Title VII alleging retaliatory discharge based on the protected activity of Thompson's fiancée, a co-worker. The trial court granted the employer's motion for summary judgment. The 6th Circuit affirmed. The court described the sole issue as whether section 704(a) of Title VII created a cause of action for third-party retaliation for persons who did not engage in protect activity.

Because Thompson did not allege he himself engaged in any statutorily protected activity (i.e., did not oppose an unlawful employment practice, make a charge, testify, assist, or participate in an investigation), the court found by the plain language of the statute that Thompson was not included in the class of persons for whom Congress created a retaliation cause of action. The 3rd, 5th, and 8th circuits agreed. The court distinguished the recent Supreme Court's decision in Crawford v. Metro Gov't of Nashville and Davidson County, Tenn., 129 SCt 846 (2009), (which abrogated the 6th Circuit's view that the opposition clause required active, consistent behavior), by stating that Crawford involved involuntary testimony while Thompson did not engage in any protected activity.

The three DISSENTS by six judges argued that (1) Crawford, at a minimum, found the meaning of "oppose" ambiguous; (2) the primacy of statutory purpose and a broad approach should apply in interpreting statutes meant to protect employees against employer retaliation for protected activity; and (3) Thompson was a person claiming to be aggrieved (injured or wronged in his rights) under 42 USC Section 2000e-5(b).

Questions presented:

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?

Full post as published by Ross' Employment Law Blog on June 29, 2010 (boomark / email).