Just when we think we are getting our heads around what employers can and cannot do, we encounter another twist. Last week The Emplawyerologist began its foray into the world of workplace retaliation. The rule seems straightforward enough. If an employee objects to, complains of, opposes or cooperates in investigations of or oppositions to unlawful behavior by an employer, the employer cannot take an adverse action against that employee or group of employees. As with any area of the law, there are several twists. This week we are looking at who is a valid complainant for workplace retaliation purposes. Many of you may not see that as a twist. After all, employers cannot retaliate against employees opposing certain behavior, and so only those employees are appropriate claimants, right? Well, not necessarily. Join The Emplawyerologist after the jump to read more.J
Suppose Employee A files a charge with the EEOC, alleging sexual harassment in violation of Title VII of the Civil Rights Act of 1964. The employer finds out and fires Employee B, who is engaged to Employee A. This is known as a third-party retaliation claim. Is Employee B entitled to file such a claim? If so, why? Employee B did not file the charge. The US Supreme Court answered “yes” to this question in early 2011 in Thompson v North American Stainless 131 S.Ct 863 (2011). Why should s/he be allowed to jump on the bandwagon? North American Steel (NAS) fired Eric Thompson three weeks after his fiancé, Miriam Regalado, filed a sex discrimination charge with the EEOC. Mr. Thompson sued NAS in the US District Court for the Eastern District of Kentucky, claiming that his firing was a retaliation for Ms. Regelado having filed the EEOC charge. The District Court and the Sixth Circuit Court of Appeals essentially dismissed the claims, holding that Title VII does not permit third party retaliation claims. The US Supreme Court unanimously disagreed. Let’s look at why and then let’s look at what courts have done since Thompson. The Court decided two issues: 1) Was Mr. Thompson’s firing an unlawful retaliation and 2) Could Mr. Thompson state a retaliation claim under Title VII against NAS under the particular facts alleged? The court answered both questions in the affirmative. As to the first question, the court relied on language from a prior case, Burlington N. & S. F.R.Co v. White 126 S. Ct. 2405 (2006) where it had held that Title VII is broadly worded and prohibits any employer action that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination”. In this case the Court said “we think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiance would be fired”. While it would not identify a fixed class of relationships that could fall within a third-party retaliation claim, it said “we expect that firing a close family member will almost always meet the Burlington standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so…”
As to the second question, the Court held that under Title VII, any plaintiff with an interest “arguably protected by the statutes” can sue, and that Mr. Thompson was within the “zone of interests” protected by Title VII. The Court reasoned that Title VII was enacted to protect employees from their employers’ unlawful actions. The Court held that , assuming all of Mr. Thompson’s allegations to be true, NAS fired him as an intended punishment for Ms. Regelado having filed a charge with the EEOC. In other words, not allowing his claim to proceed would send a message to employers that they could do an end-run around Title VII, thus severely undermining its protections.
What if anything have courts done since Thompson? The US District Court for the Southern District of Texas in Zamora v. City of Houston, , had, just before Thompson, that a son could not sue, alleging that his firing by the Houston Police Department was a retaliation for his father having filed an EEOC discrimination charge against the Department. Since the case was still pending when the Thompson holding came down, the circuit court reversed the district court’s holding and allowed the claim to proceed 425 F. App’x 314 5th Circuit, May 2011. Zamora therefore extended third-party retaliation claims to parent-child relationships as well as fiancé relationships. What about cases alleging that one governmental office fired an employee in retaliation for his wife’s having filed and settled a discrimination lawsuit against another government agency? Just this year, the 11th Circuit Court of Appeals in declined to extend Thompson that far, even though at one point the married couple had at one time both worked for the same agency, Underwood v. Dept of Fin Servs State of Fla (11th Cir No 12-14711 (April 25, 2013).
How about dating and best friend relationships? Harrington v Career Training Inst Orlando, Inc No. 8:11-cv-1817-T-33MAP, 2011 WL 4389870 (MD Fla. Sept 21, 2011) and Lard v. Alabama Alcoholic Beverage Control Board No. 2:12-CV-452-WHA, 2012 WL 5966617 (M.D. Ala Nov 28, 2012) and Ali v. District of Columbia Government 810 F.Supp 2d 78 (D.D.C 2011) all held that claims involving these types of relationships are viable under Thompson.
How about cases involving federal statutes aside from Title VII? Courts have held that allowed third-party retaliation claims involving the ADEA (See Dembin v. LVI Services Inc 822 F.Supp 2d 436 (SDNY) and Hovespyan v Blaya 770 F Supp 2d 259 (DD 2011) and the FMLA (See Lopez v. Four Dee Inc No. 11-CV-1099, 2012 WL 2339289 (EDNY June 19, 2012). In contrast however, the District Court for the Northern District of Ohio in Gilbert v St Rita’s Professional Services, LLC 2012 Wl 2344583 (ND OH June 20, 2012) holding that the FMLA’s language did not permit third-party retaliation claims. The court apparently was unaware of the Lopez holding from the day before. (Contrast that with the Eastern District of New York, which followed the Lopez holding in Augustus v SHRC Nassau NO 11 CV-15 MKB, 2012 WL 6138484 (E.D.N.Y Dec. 11, 2012).
So, what proactive steps can an employer take in light of these rulings on third-party retaliation claims?
- As always, periodically review and update policies and procedures to ensure that they are in compliance with current law.
- Train managers and all decision makers on anti-discrimination and retaliation laws and the implications of the cases discussed here.
- When taking adverse action against one employee, take into consideration any relationships with other employees that may have opposed or be in the process of opposing or alleging unlawful conduct.
- Document any adverse actions against employees “closely related” to those who may have alleged unlawful employer practices and be ready to support such decisions with evidence.
What constitutes an actual “complaint” of unlawful conduct? Must it be in a specific form? Come back next week and find out!
Disclaimer: Contents of this post are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent local employment counsel on any issues discussed here.
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