In a unanimous decision, the United States Supreme Court recently held that an employee who has not engaged in protected activity may still have a valid cause of action for retaliation, if the employer took adverse action against the employee due to the employee’s connection to another employee who engaged in protected activity. This holding dramatically expands the scope of retaliation liability for employers under Title VII of the Federal Civil Rights Act of 1964.
Mariam Regalado and her fiancé, Eric Thompson, were both employees of North American Stainless (NAS). In 2003, Ms. Regalado filed a sex discrimination charge against the company with the EEOC. The EEOC notified NAS that Ms. Regalado had filed the charge. Three weeks later, NAS terminated Thompson’s employment. Thompson then sued NAS, alleging his discharge was in retaliation for his fiancé’s EEOC charge. The trial court and the Court of Appeals dismissed the lawsuit, finding that Title VII’s protections did not apply to Thompson because he had not personally engaged in the protected activity. The United States Supreme Court disagreed.
The Court looked at two issues: (1) whether Thompson’s firing constituted unlawful retaliation under Title VII, and (2) if it did, whether Title VII provided Thompson with a cause of action.
As to the first issue, the Court concluded that, assuming the facts alleged by Thompson were true, it was difficult not to conclude that NAS’s termination of Thompson had violated Title VII. In its analysis, the Court noted that Title VII’s anti-retaliation provisions must be construed to cover a broad range of employer conduct. Specifically, Title VII’s anti-retaliation provision prohibits any employer action that may dissuade a reasonable worker from making or supporting a charge of discrimination. The Court found that it was “obvious that a reasonable worker might be dissuaded form engaging in protected activity if she knew that her fiancé would be fired.”
As to the second question, the Court set forth the “zone of interest” test. The Court determined that a plaintiff could not sue unless he falls within the zone of interest sought to be protected by the statutory provision whose violation forms the legal basis of his complaints. In other words, as an employee of NAS, Title VII was intended to protect Thompson from the unlawful actions of his employer. The Court reasoned that, if the facts alleged by Thompson were true, then Thompson’s termination was the intended means of punishing Ms. Regaldo for filing a charge against her employer. Therefore, Thompson was a “person aggrieved with standing to sue under the statutory regime of Title VII.” Even though Thompson did not engage in any protected activity under Title VII, he was within the “zone of interest” sought to be protected by Title VII, which allows a person aggrieved by an alleged employment practice to bring a civil action.
What this Means for You
While the Court allowed an employee who had not engaged in protected activity to bring a claim, it declined to identify the specific types of relationships that would fall within Title VII’s protections. The Court noted that “firing a close family member will almost always meet the requisite standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so.” Accordingly, it is important for employers to realize that Title VII protects more than just the employee who engages in the protected activity. Here are some things to keep in mind in light of Thompson:
- Promptly investigate employee complaints.
- Review all personnel decisions involving the complaining employee to ensure that your employment actions are free of any retaliatory motive.
- Ensure that all employment policies include anti-retaliation provisions.
- Train managers, supervisors, and human resource staff to refrain from and to identify potential instances of associational discrimination or retaliation.
- Following a complaint, remind supervisory employees that retaliation is prohibited and taking action of any sort, even against someone associated with an employee who has brought a complaint, may be unlawful.
- Document performance problems thoroughly and contemporaneously to support any adverse employment actions taken.
- Always make certain that adverse employment decisions are based on legitimate and non-discriminatory factors.
Because most cases in California are brought under FEHA, rather than Title VII, it is unclear how this holding will impact the majority of retaliation cases in California. However, given that California courts look to federal decisions for guidance and because California courts are usually more liberal than the federal courts, it would not be surprising to see California courts follow the reasoning of this decision.