Yesterday’s decision in Thompson v. North American Stainless (S.Ct. 1/24/11) illustrates that retaliation may now be the most employee/plaintiff friendly area in employment law. There, a unanimous Court held that an employee, who was fired for his fiancée’s protected activity, was also protected by Title VII.
Employers, starving for good news, had hoped for a strict reading of Title VII, which would lead to a clear standard of when someone is protected from retaliation. Employers were looking for the Court to find that Congress, in enacting Title VII, had meant to protect the employee who actually engaged in a protected activity, i.e. opposed an unlawful practice, made a charge, testified, assisted, or participated in an investigation, proceeding, or hearing. Unfortunately we will go hungry again.
In an opinion authored by Justice Scalia, the Court blurred the line for employers about what relationship will be considered sufficient to extend an employee’s protected activity to another. Applying the Burlington standard to association retaliation, North American Stainless (NAS) argued this standard will place the employer at risk any time it fires any employee who happens to have a connection to a different employee who filed a charge with the EEOC. The Court countered, finding:
Although we acknowledge the force of this point, we do not think it justifies a categorical rule that third-party reprisals do not violate Title VII. As explained above, we adopted a broad standard in Burlington because Title VII’s anti-retaliation provision is worded broadly. We think there is no textual basis for making an exception to it for third-party reprisals, and a preference for clear rules cannot justify departing from statutory text.
In addressing retaliation claims, employers are now in a free fall, being pushed off a cliff by the Court. Protected activity has been expanded beyond the protection of the one who engages in the activity. It will be up to prudent employers to determine just how far and under what circumstances that protection will extend. Unfortunately for employers, that means more litigation. The Court missed an ideal opportunity to provide employers with clear direction. For those employers with employees involved in relationships, this decision presents unique challenges.
When a co-employee spouse, registered domestic partner or fiancée complains, adverse action against the non-complaining spouse, registered domestic partner, or fiancée will certainly meet the new NAS standard, unless the employer can show a legitimate business reason for its actions. Employers will have to carefully consider whether NAS will also apply to more casual relationships within the workplace and how employers may be put on notice of these ongoing relationships. Hopefully future decisions will land us on terra firma. However, if this decision is any indication, we still have a long way to fall.