Third Party Or Associational Retaliation Is Now Actionable Under Title VII

02 March 2011 Labor & Employment Law Perspectives Blog

In an 8-0 decision, the Supreme Court ruled recently that an employee who claims he was fired because his fiancée filed a sex discrimination charge against their mutual employer may pursue a retaliation claim under Title VII. Thompson v. North American Stainless (S.Ct. 1/24/11).

Justice Scalia wrote for the Court. Justice Ginsburg filed a concurring opinion, which was joined by Justice Breyer. Justice Kagan did not take part.

Reversing a federal appeals court ruling in favor of North American Stainless LP, the Supreme Court said it had “little difficulty concluding that if the facts alleged by the plaintiff are true, then [the company’s] firing of him violated Title VII.” The Court held that even though it was the plaintiff’s fiancée who filed the sex bias charge and not the plaintiff, he is still a “person aggrieved” within the meaning of Title VII and therefore entitled to sue for retaliation

The Court’s ruling expands Title VII retaliation protection to persons who are closely associated with the individual who engaged in a protective activity, however, it is still uncertain how far the expansion extends. 

Judge Scalia noted this uncertainty, stating:

We must also decline to identify a fixed class of relationships for which third-party reprisals are unlawful. We expect that firing a close family member will almost always meet the Burlington standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize. As we explained in Burlington,  “the significance of any given act of retaliation will often depend upon the particular circumstances.” Given the broad statutory text and the variety of workplace contexts in which retaliation may occur, Title VII’s anti-retaliation provision is simply not reducible to a comprehensive set of clear rules. We emphasize, however, that “the provision’s standard for judging harm must be objective,” so as to “avoi[d] the uncertainties and unfair discrepancies that can plague a judicial effort to determine a plaintiff’s unusual subjective feelings.”

Interestingly, the Americans with Disabilities Act contains a specific provision for association type discrimination while Title VII does not. Thanks to the Supreme Court, however, this type of associational or third party retaliation is now actionable under both statutes. 

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