Anti-discrimination laws generally protect employees from discriminatory conduct in employment decisions. In addition to protecting employees from unlawful discrimination in employment decisions, the anti-discrimination laws also affords protection to employees from retaliatory conduct for engaging in a “protected activity,” such as reporting a claim of discrimination. The first arm of the anti-discrimination laws clearly protects those employees who actually suffer an adverse employment action based upon unlawful discriminatory reasons.
What is not so clear is which employees are provided protection against retaliation. Obviously, an employer cannot retaliate against those employees who actively engage in the protected activity but can an employer take action against another employee who has an association with the employee that engaged in the protected activity? For example, is it permissible for an employer to fire the sibling of the employee who engaged in the protected activity in retaliation for partaking in such activity?
On January 24, 2011, the Supreme Court of the United States attempted to clarify the extent of protection afforded by the anti-retaliation arm. In Thompson v. N. Am. Stainless, LP, ___ U.S. ___ (2011), a female employee filed a charge of gender discrimination against her employer with the Equal Employment Opportunity Commission – a protected activity under Title VII of the Civil Rights Act. Three weeks after the employer was provided notice of the filing of the charge with the EEOC, the employer terminated the employee’s fiancee who also worked for the employer. The fiancee subsequently brought suit alleging that he had been terminated in retaliation for his fiancee’s filing of the claim with the EEOC.
The employer argued that Title VII only protects those who partook in the protected activity – in this case, the employee who filed the charge of discrimination – and that third-parties, such as the fiancee, are precluded from asserting retaliation claims. On the other hand, the plaintiff argued for a much broader interpretation of the statute that would provide protection to other employees that have some relationship with the employee that took part in the protected activity.
In a unanimous decision, the Supreme Court held that Title VII affords protection to a larger class of individuals than just those who actually engage in the protected activity. The Court reasoned that the language of the anti-retaliation provision is broad in scope and, thus, must be interpreted “to cover a broad range of employer conduct.” The Court further reasoned that the purpose of the statute is to prohibit employer action that may “dissuade a reasonable worker from making or supporting a charge of discrimination.”
Based upon the broad purpose of the anti-retaliation provision of Title VII, the Court held that it is “obvious that a reasonable worker might be dissuaded from engaging in protected activity if she [or he] knew that her [or his] fiancee would be fired.” Thus, anti-retaliation statutes provide protection to the employees who engage in a protected activity and other employees that maintain some relationship to that employee. This decision begs the question, just how far does this protection extend? Is protection afforded to a girl/boy friend, a close friend, a trusted co-worker?
The Court clearly indicated that the firing of a “close family member will almost always meet the ... standard.” The protection afforded other relationships between third-parties and the employee engaging in protected activity, however, are not as clear. While failing to provide a clear and precise test for determining whether a third-party’s relationship with the employee engaging in the protected activity is close enough to provide protection to the third-party, the Court intimated that in cases where the third-party is “not an accidental victim of retaliation” and where the employer intended to injure the employee engaging in the protected activity by taking action against a third-party, the relationship is sufficient to support a claim of retaliation by the third-party.
In practice, for many reasons, an employer should be aware of the relationships between its employees. Although the mere existence of a “close” relationship between an employee engaged in a protected activity and another employee does not preclude any employer from terminating the other employee, it does present some pratfalls. An employer that understands that a “close” relationship exists between an employee engaging in a protected activity and another employee whom the employer intends to terminate, however, would be in a better position to avoid the potential pratfalls in terminating the employee. In such circumstances, the employer should be able to substantiate the legitimate non-retaliatory reasons for terminating such employee.
If you would like a copy of the full opinion or if you have any other questions regarding Employment Practices Liability, feel free to contact one of our practice area attorneys.