?Man must evolve for all human conflict a method which rejects revenge, aggression and retaliation. The foundation of such a method is love.?
--Martin Luther King, Jr.
On January 24, 2011, the United States Supreme Court issued its highly-anticipated decision in Thompson v. North American Stainless, L.P. The Beatles playfully harmonized, ?All you need is love,? but they were not singing about the U.S. Supreme Court doling it out. In Dr. King?s terms, the ?method? by which the Court ?rejects . . . retaliation? is to substantially broaden the reach of Title VII?s anti-retaliation provision.
Eric Thompson was fired from his job at North American Stainless three weeks after the company received notice that his fianc? and co-worker, Miriam Regalado, filed a sex discrimination charge against their employer. Thompson filed suit against North American Stainless, alleging it had discharged him in order to retaliate against Regalado for filing her EEOC charge. The Sixth Circuit Court of Appeals (covering Kentucky, Michigan, Ohio, and Tennessee) found that Thompson could not state a claim because he had not engaged in any protected activity, on either his own behalf or his fianc?s. That?s when the Supreme Court stepped in and did its own matchmaking.
Getting to the heart of the matter.
The Court broke down the issue into two questions: (1) did firing Thompson constitute unlawful retaliation; and (2) if yes, did Thompson have a claim under Title VII?
The Court reached an easy ?yes? as to the first question, relying upon the broad coverage of Title VII to support its opinion. It explained that the anti-retaliation provision prohibits employers from acting in a way that may dissuade a reasonable employee from filing a discrimination charge. Firing an employee?s fianc? is such an action. The Court declined to list the relationships which would support a third-party reprisal claim as circumstances would be unique in each instance. ?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 second question raised the issue of standing to sue. The Court adopted a ?zone of interests? test, holding that ?the term ?aggrieved? in Title VII incorporates this test, enabling suit by any plaintiff with an interest ?arguably [sought] to be protected by the statutes,? while excluding plaintiffs who might technically be injured in an Article III sense but whose interests are unrelated to the statutory prohibitions in Title VII.? (citations omitted).
Under this test, not only does the employee engaging in protected activity have a retaliation claim, so does her loved one. As the Court viewed it, the fianc? was not ?an accidental victim,? rather; he was the means by which the employer intentionally harmed the complaining employee.
Are you feeling the love, yet?
Well, if employees are feeling it, they may very well be considered potential ?aggrieved? employees who fall within the zone of interests protected by Title VII. So, who falls within this ?zone of interests?? Only time will tell. The Court felt sure that ?a close family member? will nearly always meet this standard. But what about best friends, a girlfriend, or a boyfriend? Is love the method that should be used to fight retaliation in the courts?
Some trickle down has already occurred, and the view is not through rose-colored glasses for employers, but it will generate work for lawyers. One example of this comes from the case McGhee v. Healthcare Servs. Group, Inc. from the United States District Court for the Northern District of Florida. Mr. McGee worked for Healthcare Services Group which was a vendor to Sovereign Healthcare of Bonifay. His job was to oversee cleanliness at the Bonifay facility. Mrs. McGee was employed by Bonifay against which she filed a disability discrimination charge. Mr. McGee alleged that he was discharged by his employer at the request of Bonifay in retaliation for his wife?s discrimination charge.
The District Court found that Thompson only denies review where the plaintiff?s interests are ?so marginally related to or inconsistent with the purposes implicit in the statute it cannot reasonably be assumed that Congress intended to permit the suit.? Noting that Thompson did not imply that co-worker status was required, it reasoned that Mr. McGee was an employee (albeit of another employer) who was intentionally injured as a means of retaliating against his wife. Mr. McGee worked at the Bonifay site, his employer and Bonifay had a relationship, and Bonifay used its influence to induce HSG to discharge him. It was easy for the District Court to conclude that a reasonable person might not engage in protected activity if she knew her spouse would be fired by his employer as a result.
Another interesting example comes to us from the United States District Court for Maine in Leavitt v. SW & B Construction Co., LLC. In that case, Mr. Leavitt and his wife worked for SW&B (this was the ultimate employer for the Leavitts even though they worked at a subsidiary of another name). Mrs. Leavitt suffered a workplace injury and filed a workers? compensation claim. Mr. Leavitt was called to testify at a hearing regarding her increasing incapacity to work. The workers? compensation claim went on for a number of years until Mrs. Leavitt and the company settled the claim. The next day, Mr. Leavitt was discharged from his job due to a reduction in force.
Mr. Leavitt filed suit under the ADA, alleging discrimination based upon association with a disabled person and retaliation. The court agreed with the employer?s argument that associational claims fit into three possible categories: (1) the individual has a spouse or relative whose disability is costly to the employer?s health plan and the employer discharges the employee to save money on premiums; (2) the individual is associated with someone who has a communicable disease and the employer fires the individual out of fear that s/he will contract the illness; or (3) the individual is discharged because the employer believes the individual will be distracted from work by the disability of a relative. So, despite the fact that the Leavitt?s marital relationship undoubtedly was covered by Thompson, Mr. Leavitt could not make out an associational disability claim based on that relationship because the facts of the matter concededly did not fall within one of the three categories.
Mr. Leavitt?s claim for retaliation also failed. This claim was grounded on his testimony on behalf of his wife during the workers? compensation proceedings. The court noted that neither Mr. Leavitt nor his spouse had opposed a practice made unlawful under the ADA by virtue of asserting a workers? compensation claim or testifying at hearings on the claim. Employers are lawfully permitted to challenge such claims, so the Leavitts? conduct was not oppositional, thus defeating their retaliation claims. Additionally, the ADA retaliation provision covers only its provisions, not the anti-retaliation provisions of the workers? compensation act. This case highlights the importance of parsing out the specifics of the third-party retaliation claim to determine if Thompson is even fairly applicable.
Follow Your Heart
The most significant issue remaining is how far will Thompson be applied? Some courts are dealing with third-party retaliation claims under other statutes that use Title VII standards. As a result, this ruling may be found to apply in cases proceeding under state counterparts to Title VII, the ADAAA, the ADEA, Title IX, and more. We could conceivably see application in public policy wrongful discharge claims, too. Can Thompson be applied to a beloved teacher, a dear neighbor, a good friend, or a fellow member of a church congregation? Who knows? Whatever the future may hold, Thompson vastly expands the spectrum of plaintiffs who can file claims with some teeth. In other words, Love bites.
Steptoe & Johnson PLLC
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