Supreme Court Broadens Title VII Associational Retaliation Claims

The Title VII Language at Issue

 Title VII of the Civil Rights Act of 1964 provides that "[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees … because he has made a charge" under Title VII. 42 U.S.C. § -3(a). The statute permits "a person claiming to be aggrieved" to file a charge with the EEOC alleging that the employer committed an unlawful employment practice and, if the EEOC declines to sue the employer, it permits a civil action to "be brought … by the person claiming to be aggrieved … by the alleged unlawful employment practice." § 2000e-5(b), (f)(1).

The Facts of Thompson

Miriam Regalado filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging that her supervisors discriminated against her based on her gender. Approximately 3 weeks after the employer was notified of the charge by the EEOC, Regalado's then fiancé and now husband Eric Thompson, who worked for the same company, was discharged. Thompson filed his own EEOC charge, claiming that his termination amounted to retaliation for Ms. Regalado, his fiancée, having filed her charge. The company maintained that Thompson was fired for performance reasons unrelated to Regalado's claim of discrimination. The EEOC issued a probable cause finding, and Thompson filed suit.

Lower Court Decisions

The District Court, Eastern District of Kentucky, granted North American Stainless's motion for summary judgment, finding that no retaliation claim existed under Title VII for Thompson based on his association or relationship with his fiancée and her filing of an EEOC charge. On appeal, the Sixth Circuit first reversed, then affirmed the lower court joining the Third, Fifth, and Eighth Circuit Courts of Appeals. Thompson v. North American Stainless, LP, 567 F.3d 804 (6th Cir. 2009). It ruled that Title VII's antiretaliation protection applies only to those persons who have personally engaged in protected activity by opposing a practice, making a charge or assisting or participating in an investigation. Because Thompson did not allege that he had engaged in any statutorily protected activity, the Sixth Circuit held he could not maintain a Title VII retaliation claim.

Supreme Court Decision

After noting that the procedural posture of the case (i.e., before a full trial) required that the Court assume the employer fired Thompson in order to retaliate against Regalado for filing a charge of discrimination, the Court determined that Thompson had standing to bring a suit against the employer for retaliation under Title VII. According to the Court, this clearly follows its 2006 decision in Burlington N.&S.F.R. Co. v. White, 548 U.S. 53, in which it held that Title VII's antiretaliation provision must be construed to cover a broad range of employer conduct and to prohibit any employer action that "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." The Court thought "it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired."

The employer argued that opening up Title VII claims to third parties "will lead to difficult line drawing problems concerning the types of relationships entitled to protections," and an employer will risk having to defend against claims "any time it fires any employee who happens to have a connection to a different employee who filed a charge with EEOC." While recognizing the difficulty for employers, the Court nevertheless held, "Title VII's antiretaliation provision is worded broadly [and] no textual basis [calls for] an exception to it for third-party reprisals, and a preference for clear rules cannot justify departure from the statutory text." It continued, "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, but beyond that we are reluctant to generalize."

The Court also determined not to adopt the constitutional "injury in fact" standing standard for Title VII standing as being too broad and instead adopted a test based on whether the plaintiff falls within the "zone of interests" articulated by the Court in Lujan v. National Wildlife Federation, 497 U.S. 871 (1990). The Court held the term "aggrieved" in Title VII would deny a right of review "if the plaintiff's interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit." As Thompson was an employee whom Title VII was intended to protect from his employer's unlawful actions, and since the employer's allegedly unlawful conduct toward Thompson (if his story is credited) was committed intentionally as a means of retaliating against his fiancé because of her EEOC charge, Thompson fell within the zone of interests protected by Title VII with standing to sue, the Court held.

Conclusion

In its fiscal year 2010, the EEOC received more charges alleging retaliation than any other basis. With this decision, the Court adopts the longstanding EEOC interpretation of the scope of the antiretaliation provision of Title VII to include third parties. Employers and their insurers must factor the Thompson decision into their decision-making going forward, particularly where adverse employment action (such as termination) is taken.