Are You Liable for Retaliation? ….Employee Relations With Co-workers

Lester W. Armstrong Seth P. Briskin

Are You Liable For Retaliation?


The Supreme Court Requires Employers to Consider

Employees’ Relationships With Co-workers.



I.  Introduction.

On January 24th, 2011, the Supreme Court held inThompson v.  North American Stainless, LP, that the 1964 Civil Rights Act, (“Title VII”) permits so-called “third-party reprisal” claims.  In short, an employee may sue for retaliation if he/she is fired – or otherwise treated adversely – in response to a discrimination complaint by a co-worker with whom he/she has a close relationship.  Unfortunately for employers, this decision imposes yet another hurdle to compliance with Title VII without providing sufficient guidance to safely clear it. 


II. Facts.

 Eric Thompson and his fiancée, Miriam Regalado, were both North American Stainless (“NAS”) employees.  In February 2003, Regalado filed a sex discrimination complaint with the Equal Employment Opportunity Commission (“EEOC”) against NAS.  Three weeks later, NAS fired Thompson.  Thompson brought suit under Title VII, claiming he was terminated in retaliation for his fiancée’s complaint.  The District Court granted NAS summary judgment on the ground that third-party retaliation claims were not permitted by Title VII.  The Sixth Circuit affirmed the District Court by holding that Thompson was not entitled to sue NAS for retaliation because he had not engaged in any activity protected by the statute.


III. Legal Analysis.

The Supreme Court reviewed the case to consider the following two issues:   (1) Was Thompson’s firing unlawful retaliation? and (2) Even if it was retaliation, does Thompson have the right to sue under Title VII considering he did not personally file the EEOC complaint?  In a unanimous decision, the Supreme Court answered both queries in the affirmative.  Justice Scalia’s majority opinion is summarized below.

Regarding the first issue, the Supreme Court held that, provided the facts alleged can be proved at trial, NAS firing Thompson in the wake of Regalado’s EEOC complaint constituted unlawful retaliation.  Employer conduct is prohibited under Title VII’s anti-retaliation provision if the employer’s act “might have dissuaded a reasonable worker from making or supporting a [discrimination] charge.” In applying this standard, the Supreme Court found that a reasonable worker might be dissuaded from filing an EEOC complaint if she knew that her fiancé would be fired as a result. 

As to the second issue, the Supreme Court made clear that Title VII grants any person claiming to be “aggrieved” by his employer the right to bring a civil action.  To be “aggrieved,”  the affected person must have an interest that “falls within the ‘zone of interests’ sought to be protected by” Title VII. 

The Supreme Court, in applying the “zone of interest” test, found that Thompson’s claim had the appropriate relation to Title VII.  Simply put, Thompson was an NAS employee and, again assuming the facts alleged were true, was a victim of NAS’s unlawful retaliation for his fiancée filing the EEOC complaint.   Because “Title VII’s purpose is to protect employees” from such unlawful employer conduct,  Thompson was a person “aggrieved” with standing to sue under Title VII.


IV.  Practical Effect On Employers.

This decision leaves employers with new questions about compliance with Title VII.  Specifically, how close must the association between employees be before retaliation liability may attach?  The opinion suggests that “firing a close family member will almost always” meet the Title VII standard if retaliatory intent can be shown, but “a milder reprisal on a mere acquaintance will almost never do so.” But what about a “girlfriend, close friend, or trusted co-worker?”  The Court’s opinion offers no guidance about these situations, except to say that liability will “depend upon the particular circumstances.”

What the Thompson decision does make clear is that it is no longer enough for employers to only be concerned if the employee has personally filed a discrimination complaint.  Employers must now also inquire as to whether the complaining employee has a significant relationship with any other co-workers and, if so, whether the relationship is sufficiently close that retaliatory action against one employee might appear as an attempt to retaliate against the other

The lesson employers should take from Thompson is to pay careful attention to the particular circumstances surrounding employees who allege discrimination, as well as those employees who face some type of adverse action.  When in doubt, discuss the matter with counsel before taking any significant adverse employment action.