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High court ruling should increase retaliation claims.

Q. Mark, a human resources manager at the local department store, learns that a supervisor wants to terminate Paul, an employee in shipping and receiving, for chronic tardiness. Mark is aware that Paul's sister Jessica, who is a cashier in the store, recently filed a sexual harassment complaint against her supervisor. Should the company go forward with Paul's termination, or is doing so inviting a lawsuit from Paul claiming retaliation because of his relationship to Jessica?

A. On Jan. 24, 2011, the U.S. Supreme Court in Thompson v. North American Stainless, extended the anti-retaliation provision under Title VII to include third parties who are in a "zone of interest" with an employee who has complained of discrimination. The Thompson derision follows a line of recent Supreme Court cases extending protection to individuals bringing retaliation claims.

Retaliation claims under Title VII have been on the rise in recent years. The Equal Employment Opportunity Commission reported an all-time high of 99,922 charges in 2010, with retaliation claims topping the list of discriminatory filings. This recent Supreme Court decision is expected to increase the number of retaliation claims being filed against employers.

In Thompson, Eric Thompson and his fiancee, Miriam Regalado, were both employees of North American Stainless (NAS). In February 2003, NAS received notice that Regalado had filed a charge of sex discrimination against the company. Thompson was fired by NAS three weeks later. Thompson then filed a charge of retaliation under Title VII with the EEOC.

When efforts at resolution proved unsuccessful, Thompson brought a lawsuit claiming his employer had fired him to retaliate against Regalado for filing her charge with the EEOC.

It was undisputed that Ms. Regalado's sexual discrimination complaint was protected activity under Tire VII. The question before tire court was whether the firing of her fiancee constituted unlawful retaliation and, if it did, whether Title VII provides Thompson as the fiance a cause of action for retaliation. The court answered both questions affirmatively.

The court reiterated its 2006 holding in Burlington N. & S.F.R. Co. v. White, when it found that the anti-retaliation provision of Title VII is worded broadly and includes actions by the employer that extend beyond the terms and conditions of an employee's employment or even outside the workplace In other words, liability for retaliation extends to an employer's conduct that "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination."

The court also determined that a reasonable worker might be dissuaded from complaining of discrimination if she knew her fiance would be fired, and therefore the employer's action in terminating Thompson constituted unlawful retaliation.

NAS had argued that broadening protections to third parties would create difficulties in determining what relationships are protected in the workplace.

Instead, the court provided some guidance on the topic. "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." This will be a case-by-case determination based on the third party's relationship to the original complainant.

The court then held that a third party can bring a retaliation claim if that person is "aggrieved" under Tire VII. The Court derided that Thompson was so "aggrieved" because he fell within the "zone of interests" protected by Title VII. The court further noted that Thompson was not an "accidental victim," and hurting him was the unlawful act by which NAS punished the original complainant, Regalado, for her discrimination complaint.

The Thompson decision is expected to continue the increase of retaliation claims that are being brought against employers.

There are lots of shades of gray as to where along the continuum individuals will fall in the workplace_ Are employees who are good friends on the job but do not serialize outside of work covered? What about the employees who have been dating for only a few days or weeks or months? Trial courts and employers are left to sort this out.

Before making employment decisions about an employee, employers should be careful to inquire into any relationship between that employee and an employee who has brought a discriminatory claim.

As for Mark, the human resources manager, his company needs to look into the reasons for Paul's proposed termination and investigate whether the supervisor's proposed termination is done to retaliate against Paul's sister for her sexual discrimination complaint.

Jennifer L. Parent, a director in the Litigation Department and Chair of the Employment Law Practice Group of McLane, Graf, Raulerson & Middleton, can be reached at 603-628-1360 or
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Title Annotation:A Question of Employment Law; Supreme Court
Author:Parent, Jennifer L.
Publication:New Hampshire Business Review
Geographic Code:1U1NH
Date:Mar 25, 2011
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