Recent Decisions Clarify Scope of Third-Party Retaliation Doctrine

, New York Law Journal

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It has been almost three years since the U.S. Supreme Court decided Thompson v. North American Stainless,1 a case that opened the door to an ever-evolving new category of retaliation plaintiffs.

Pre-Thompson, federal retaliation claims were typically brought against employers by one type of plaintiff: an employee claiming to have suffered adverse action in retaliation for his or her engagement in protected activity, such as complaining to management about discrimination. Thompson significantly expanded the reach of the already broad anti-retaliation provision of Title VII of the Civil Rights Act of 1964 by endorsing the concept that federal anti-retaliation law can cover certain claims brought by third parties who did not engage in protected activity. The so-called "third-party retaliation" cause of action allows an individual who is related or otherwise connected to a discrimination complainant to assert that he or she was retaliated against for the complainant's protected activity. For example, a plaintiff who works for the same employer as her husband might allege that she was fired in retaliation for her husband having sued the employer for race discrimination.

Although the Supreme Court in Thompson gave general guidance as to which parties may bring a third-party retaliation claim, it was left to the federal district courts to make fact-based determinations as to how close an individual must be to the complaining party to assert a retaliation action. As district courts continue to grapple with this question, their recent decisions provide us with insight as to the scope—and the limitations—of the third-party retaliation doctrine.

Retaliation

Title VII of the Civil Rights Act of 1964 makes it an

unlawful employment practice for an employer to discriminate against any of his employees…because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.2

This provision has been interpreted broadly to prohibit employers from any action that might "dissuade[] a reasonable worker from making or supporting a charge of discrimination."3

According to Equal Employment Opportunity Commission statistics, the number of retaliation claims brought against employers each year has doubled since 1997. Retaliation charges now comprise 38 percent of all EEOC charges filed and, for the past several years, retaliation has been the most common discrimination complaint filed in federal court.

The 'Thompson' Decision

Prior to the Supreme Court's decision in Thompson, the federal circuits were split on the question of whether third-party retaliation claims were cognizable under Title VII. The Second Circuit had not ruled on the issue.4

Thompson case involved Eric Thompson and his fiancée, Miriam Regalado, both employees of North American Stainless (NAS). NAS fired Thompson three weeks after the EEOC informed the company that Regalado had filed a charge of sex discrimination against it. The Washington district court granted summary judgment to NAS on Thompson's retaliation action, concluding that Title VII does not permit claims of third-party retaliation. The Sixth Circuit affirmed.

On appeal, the Supreme Court unanimously held that the Title VII language allowing a civil action to be brought by a person "claiming to be aggrieved" refers to anyone who falls within the "zone of interests" sought to be protected by the statute. As an employee of NAS and "collateral damage, so to speak, of the employer's unlawful act," Thompson, the court held, was within the zone of interests that Title VII protects. Therefore, his retaliation lawsuit could stand.

Although Thompson was a Title VII discrimination case, certain courts have applied its holding with equal force to retaliation claims under the Age Discrimination in Employment Act5 and in the context of First Amendment political affiliation retaliation pursuant to 42 U.S.C. §1983.6

Who Is in the Zone?

The Supreme Court, in Thompson, adopted a "zone of interests" litmus test for third-party retaliation claims but did not define the parameters of that zone. Rather, the court left it to the district courts to decide on a case-by-case basis which relationships fall within the zone of interests. The Thompson court did offer the following guidance:

[F]iring a close family member will almost always meet the [] standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize.7

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