Last week we reported that retaliation claims had surpassed race discrimination claims to become the most common claim filed with the EEOC. This week we report that the U. S. Supreme Court has expanded the scope of who can bring retaliation claims to include third parties having a “close relationship” to the person who engaged in the protected activity. Thompson v. North American Stainless, L.P. (2011).
This decision has the potential of further increasing the number of retaliation claims. And the decision leaves employers in the difficult position of not only assuring that the employee who engaged in protected activity is not retaliated against, but also that persons close to that employee are not retaliated against.
Eric Thompson and his fiancée, Miriam Regalado, were employed by North American Stainless. Three weeks after Regalado filed an EEOC charge alleging sex discrimination, NAS fired Thompson. Thompson alleged that his termination was in retaliation for Regalado’s charge filing.
The Supreme Court held that Thompson could bring a retaliation claim even though he did not engage in the protected activity (filing the charge) himself because of his close relationship to the person who did. The Court recognized that a third party like Thompson could also be a “person aggrieved” under Title VII. How far does this third-party protection extend?
The Court said that a fact specific analysis must be applied in each case, but that the firing of a close family member will almost always meet the standard.
The Court applied the standard it created in its 2006 decision Burlington Northern Santa Fe Railway Co. to determine whether the retaliation was sufficiently severe. That standard is that the action taken must be severe enough that it might reasonably dissuade someone from filing a charge of discrimination. The Court was satisfied that this standard was met and said that had Regalado known that her fiancée would be fired because she filed a charge, she might not have done so.