Employers face increased exposure to retaliation claims in the wake of another recent U.S. Supreme Court ruling expanding which employees are protected under Title VII’s retaliation provisions.
Title VII prohibits employers from discriminating on the basis of race, color, sex, national origin and religion. It also prohibits employers from retaliating against ”employees or applicants… because [the employee or applicant] has opposed any… unlawful employment practice…, made a charge, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under this subchapter.” Based on this language courts have limited Title VII retaliation claims to only persons who actually engage in one of the enumerated protected activities found in the statute. Consequently, if an employee experienced some negative action by an employer because of his/her relationship with someone who engaged in protected activity, a claim of retaliation was often disallowed because the aggrieved employee did not actually participate in any enumerated protected activity. This is the situation reviewed in the recent decision of Thompson v. North American Stainless, L.P., 131 S. Ct. 863 (2011).
Thompson and his fiancé both worked for the same employer. Shortly after Thompson’s fiancé filed a charge alleging sex discrimination against their joint employer, Thompson was fired, allegedly in retaliation for his fiancé’s protected activity. The district court and the court of appeals dismissed Thompson’s retaliation claim because, although Thompson may have suffered an adverse employment action, he did not engage in any of the protected activities enumerated in the statute. That is, the retaliation was not because “he” opposed any practice, filed a charge or assisted in any investigation.
The Supreme Court reversed. The Court concluded there is no doubt that if the facts as alleged are true, Thompson was a victim of retaliation because of his fiancé’s protected conduct. More importantly, the Court determined that retaliation claims are not limited to those who actually engage in the protected conduct. Instead, so long as the person allegedly retaliated against is within the “zone of interest” with respect to the person who did engage in protected activity, he or she may establish a claim of retaliation under Title VII as a “person aggrieved”.
Absent from the decision is any clear guidance as to what the “zone of interest” is for asserting retaliation claims. Instead, the Court announced that “any plaintiff” with an interest “arguably [sought] to be protected” may be able to assert a retaliation claim. On the other hand, if a person’s interests are “so marginally related to or inconsistent with” the statute, he or she will be outside the zone of interest for protection. Although these precise parameters will undoubtedly be the subject of refinement by courts, it appears that most any co-employee with a relationship to a person who engages in protected activity may be able to claim retaliation for an adverse employment decision, even if he or she never engages in any of the activities listed in the statute. Effectively, a person who engages in protected activity cloaks those with whom he or she has a relationship within Title VII’s protective shield.
The Thompson decision marks the second recent decision of the U.S. Supreme Court expanding retaliation claims under Title VII. In Burlington N. & S.F.R. Co. v. White, 548 U.S. 53 (2006) the Court held that retaliation can take many forms and is not limited to “ultimate employment” decisions. Instead, any action that might dissuade a reasonable worker from making or supporting a charge could be considered retaliatory. After Burlington, the number of retaliation claims expanded significantly.
As a result of both these cases, employers must be vigilant to ensure all employment related decisions are supportable against claims of discrimination or retaliation.
Keith Sieczkowski is the senior labor and employment lawyer at Branscomb Law, a Corpus-Christi-based law firm providing solutions for businesses, executives and families with tax, real estate, oil and gas, estate planning, probate, corporate, employment and litigation matters.