Labor and Employment Law Weekly Update

14 March 2011 Publication
Authors: Dabney D. Ware

Legal News: Employment Law Update

Another Way Retaliation Claims Just Got Easier to Bring
By Dabney Ware

Since 1997, retaliation claims with the EEOC have almost doubled, and recent case law provides yet another way for employees (and their lawyers) to make a retaliation claim.

A recent case, McGhee v. Healthcare Services Group, et al., involved a married couple who each worked for separate companies that had a business relationship. The wife worked for a nursing facility, while the husband was employed as an account manager for the vendor hired to ensure the cleanliness of the same nursing facility. In his position, the husband had some responsibility for managing the contract with the nursing facility.

According to the lawsuit, the wife believed she was terminated due to her disability, and filed a charge of discrimination. The wife alleged that after her charge was filed, the nursing facility, through its administrator, sought to have her husband fired from his account manager position with the vendor. During the course of several months, complaints from the nursing facility about the husband’s work increased and the nursing facility reportedly requested several times that the husband be terminated. The husband alleged the pressure from the nursing home ultimately worked, and that his termination paperwork stated, “It is best to go in another direction with management to keep the client satisfied.”

The husband filed suit against his employer, the nursing facility, and the nursing home administrator based on two legal theories — tortious interference with a business relationship and retaliation. The nursing home sought to dismiss the retaliation complaint because the husband did not participate in the protected activity since the charge had been filed by his wife.

Relying on the recent U.S. Supreme Court decision in Thompson v. North American Stainless (, where a fiancée was allowed to pursue a retaliation claim, the court concluded that the retaliation claim was legally permissible. The nursing facility’s attorney had specifically argued that Thompson did not apply, because in Thompson, the fiancée worked for the same company, and here the husband worked for a different company. The court applied the reasoning in Thompson, a “zone of interest” test would only prohibit retaliation claims when the interests of the plaintiff (the husband here) either were too marginally related or were inconsistent with the statute’s purpose. In this case, the retaliation claim was allowed because the wife’s employer “intended to injure [the husband] to punish the employee [the wife] who engaged in the protected action.”

See also Foley’s Legal News: Employment Law Update (Week of January 31, 2011) ( for additional information on the Thompson decision.

EEOC Provides Insight Into Its Increase in Charges Filed
By Jeremy C. Wooden

As reported on Foley’s Labor and Employment Perspectives Blog in November 2010 (, the EEOC filed nearly 100,000 charges in fiscal year 2010. This number amounted to the most charges ever in the EEOC’s 45-year history and represented a 7.2-percent increase over the number of charges filed in 2009.

The EEOC’s enhanced approach highlights the need for employers to respond with extra concern and resources when facing a charge that attacks a policy or practice. EEOC attorneys recently shared a list of best practices to implement in responding to an EEOC charge, including:

  • Provide all the evidence that the EEOC requests.
  • Provide documentation to support employer position statements. An EEOC attorney stated that a position statement that relies on real evidence — rather than an over-reliance on the law — is the most convincing way to disprove discrimination.
  • Cooperate. EEOC attorneys cautioned against resisting a charge, confirming that it will likely “arouse suspicion” and lead the agency to question what the employer is hiding.
  • Treat the investigators respectfully and avoid “badmouthing” the charging party.

EEOC attorneys also provided the following insight into the agency’s recent increase in the number of charges filed.

  • EEOC attorneys are confident courts will enforce the agency’s subpoenas, including when the information sought goes beyond the initial charge.
  • The EEOC is attempting to conduct an increased number of onsite investigations, including audiotaped interviews with employees who are under oath.
  • Recent amendments to the ADA and recent disability-related court decisions have caused the EEOC to view more individuals as disabled, including individuals with arthritis, epilepsy, some types of cancer, diabetes, and some psychological disorders.
  • EEOC attorneys also noted that, perhaps unknown to many employers, it has filed approximately 200 charges of genetic discrimination (recently discussed here The EEOC sees potential areas of genetic discrimination in employer requests for family medical histories, fitness-for-duty tests, and medical examinations where the examining doctor inquires into past medical history.

Employers should be aware of the EEOC’s increased enforcement efforts, and respond with concern and resources when facing an EEOC charge. More information about the EEOC is available online at (


Legal News is part of our ongoing commitment to providing legal insight to our clients and colleagues. If you have any questions about or would like to discuss these topics further, please contact your Foley attorney or the authors of this week’s issue.

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