HOW FAR DO TITLE VII’S RETALIATION TENTACLES REACH?

A little over one week ago, employers everywhere found out that they would soon learn exactly how thin the lines of retaliation under federal civil rights law may be stretched.

In deciding to hear the case of Thompson v. North American Stainless, LP, the United States Supreme Court indicated that it would again shed further light on the anti-retaliation provisions of Title VII of the Civil Rights Act of 1964. In the Thompson case, the focus is squarely on who exactly is protected by those provisions.

Generally speaking, Title VII protects an employee from retaliation for opposing an unlawful employment practice. It also protects an employee from retaliation for participating in an investigation into such a practice or participating in proceedings against an employer alleging that such a practice occurred.

In Thompson, however, the Court will decide whether an individual can claim protection from retaliation under the law based solely on their association with someone who has opposed such a practice or participated in a proceeding or investigation related to one – as, for example, when the plaintiff argues that he was fired based solely in retaliation for his wife, a co-worker at North American Stainless, filing a complaint of sex discrimination against the employer with the EEOC.

Over the last decade, plaintiffs’ attorneys have gotten particularly creative in arguing that the purpose of the law’s anti-retaliation provision is equally served by shielding from retaliation not just those who complain or who otherwise participate in opposing an unlawful employment practice – as the statute itself plainly protects – but also their spouses and others who are related to them. Not all of these efforts have been successful, but a few years ago, plaintiffs’ attorneys added a further tool to the toolbox to help them better make the argument.

As many employers know, the Supreme Court already significantly broadened the threshold for retaliation claims in the 2006 decision in Burlington Northern Santa Fe Railway Co. v. White. In that case, the Court concluded that any action – not just terminations or other discipline – which might dissuade an employee from filing a claim of discrimination or opposing an unlawful employment practice could be retaliatory. This certainly could include taking adverse employment action towards a spouse, and the fact that the United States Supreme Court is taking up the Thompson case says everything about the importance of settling this controversial issue.

Undoubtedly, this is a case employers should pay close attention to because the risk of exposure for employers to a significantly higher number of retaliation claims is great if the Court sides with the Plaintiff-employee. Just as importantly, employers should want to know how far the line of protection might stretch. Are spouses protected? What about other family members? How about friends and other business associates? There are no easy answers to these questions, which is one of the many reasons why the Court’s decision in this case – not likely to come for approximately 6-8 months — is already so eagerly anticipated.

Mario Bordogna represents clients in all aspects of labor and employment law in state and federal courts. Mr. Bordogna concentrates his practice in the areas of employment litigation, employment discrimination, workers’ compensation, employment counseling, and labor–management relations.
 
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