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High Court to Decide Reach of Anti-Retaliation Provisions

Published: 2011/01/09
Author: Kocurek & Krudop PC
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Synopsis: Federal law provides employees with important protections against discrimination in the workplace. The Supreme Court recently heard oral arguments in an important employment law case that will test the bounds of anti-retaliation claims under federal anti-discrimination laws.

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The Supreme Court recently heard oral arguments in an important employment law case that will test the bounds of anti-retaliation claims under federal anti-discrimination laws.


Federal law provides employees with important protections against discrimination in the workplace, including discrimination based on race, color, religion, sex, national origin, age and disability. Federal law also protects employees who report discriminatory conduct or assist in an investigation of discrimination from employer retaliation.

The anti-retaliation provisions of Title VII of the Civil Rights Act of 1964 prohibit employers not only from firing employees who have filed a discrimination complaint, but also from taking other "adverse employment action." Examples of adverse employment action include demotions, transferring employees to other departments, giving poor performance reviews, failing to give raises and overlooking employees for promotions.

In addition to protecting employees who have filed a discrimination complaint, federal law also protects employees who have participated in an investigation, hearing or any legal proceeding regarding a discrimination complaint.

While it is clear that employers cannot take retaliatory action against employees who have reported alleged discriminatory acts in the workplace, it is less clear whether federal anti-retaliation provisions extend to third parties. In other words, can an employer take retaliatory action against a person closely related to an employee based on the employee filing a discrimination claim against the employer

This is the question the U.S. Supreme Court has been asked to decide in Thompson v. North American Stainless (No. 09-291).

Thompson v. North American Stainless

In Thompson, a former employee of North American Stainless claims that he was fired because his then-fiancee, Miriam Regalado, filed a sex discrimination complaint against the company with the Equal Employment Opportunity Commission (EEOC).

Eric Thompson began working for North American Stainless in 1997 and began dating Regalado after she was hired in 2000. They later became engaged. In 2003, Thompson was fired by North American Stainless, three weeks after the company learned of Regalado's EEOC sex discrimination complaint.

Believing North American Stainless had fired him as a means of retaliating against his fiancee, Thompson then filed his own illegal retaliation claim with the EEOC. In their investigation, the EEOC found reasonable cause to believe that Thompson had been a victim of retaliation, but the agency was unable to reach a settlement with his employer on the claim.

North American Stainless maintained that Thompson had been fired for performance reasons, not retaliation. Thompson then filed a civil lawsuit against North American Stainless.

At trial, the district court found in favor of North American Stainless. The court held that Thompson had failed to state a cause of action, finding that anti-retaliation claims under Title VII must be brought by the person who had engaged in the protected activity and that the protections of the provision do not apply to third-parties. The Sixth Circuit Court of Appeals affirmed the lower court's ruling. The U.S. Supreme Court agreed to hear the case on June 29, 2010.

Arguments Before the US Supreme Court

During oral arguments, North American Stainless argued that the US Supreme Court should uphold the lower courts' rulings and find that the anti-retaliation provisions in Title VII only apply to those who personally file a discrimination complaint or personally engage in another protected activity.

North American Stainless also argued that there is already a means for courts to address third party retaliation claims, through suits filed by the person who engaged in the protected activity. In this case, North American Stainless claims that Regalado should have taken legal action, as she could have claimed that her fiance was fired by their employer to retaliate against her for filing a complaint with the EEOC.

Thompson's attorney, on the other hand, argued that the language of Title VII does not prevent the Court from finding that third parties can file illegal retaliation claims. The attorney also argued that an employer taking retaliatory action against an employee's fiance, spouse or other close family member may have just as much of a chilling effect as threatening the employee's own job.

During oral arguments, the Justices seemed concerned about where to draw the line regarding who would have the right to bring a third party retaliation claim. The Justices asked Thompson's lawyer to define what the relationship had to be - was a good friend close enough, or someone the employee dated

Thompson's lawyer advocated for a standard similar to one the Court announced in a 2006 employment law case, Burlington Northern Santa Fe Railway Co. v. White. In that case, the Court held that the illegal retaliatory action did not have to be work-related so long as the act was something that "might well have dissuaded a reasonable worker from making or supporting a charge of discrimination." In Burlington, a supervisor went to the employee's house after work hours and threw a brick in her window in retaliation for filing a sex discrimination complaint against him with the EEOC.


While it will not be clear until the Supreme Court announces it decision in Thompson whether third parties can bring retaliation claims, retaliation continues to be illegal under Title VII for those employees who personally engaged in a protected activity under the federal anti-discrimination laws.

Employees who are concerned about workplace retaliation or who believe they have been the victim of retaliation by their employers should contact a lawyer with experience handling employment law cases. A knowledgeable employment law attorney can explain your rights and options and help guide you through the process of filing a retaliation claim.

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