Archive for the 'Retaliation' Category

SCOTUS Dramatically Expands Who Can Sue for Retaliation

“Until 2003, both petitioner Eric Thompson and his fiancée, Miriam Regalado, were employees of respondent North American Stainless (NAS). In February 2003, the Equal Employment Opportunity Commission (EEOC)notified NAS that Regalado had filed a charge alleging sex discrimination. Three weeks later, NAS fired Thompson.”

And with that introduction, Justice Scalia, writing for a unanimous Court (Justice Kagen did not participate) dramatically expanded the rights of employees to sue their employers for retaliation under Title VII of the Civil Rights Act of 1964.

The Court framed two questions if felt it needed to answer:  “First, did NAS’s firing of Thompson constitute unlawful retaliation? And second, if it did, does Title VII grant Thompson a cause of action?”

The Court had little trouble answering the first question in favor of employees.  Viewing Thompson’s allegations as true (which the Court must do for purposes of the appeal), the Court noted “ . . . Title VII’s antiretaliation provision prohibits any employer action that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.””  The Court then went on to hold that a reasonable worker could very well be dissuaded from filing a charge of discrimination if he or she knew that the consequence of doing so was having one’s fiancee terminated.  The Court was unmoved by the potential confusion that such a rule might cause for employers.  Instead, the Court stated:

“Although we acknowledge the force of this point, we do not think it justifies a categorical rule that third-party reprisals do not violate Title VII. As explained above, we adopted a broad standard in Burlington because Title VII’s antiretaliation provision is worded broadly. We think there is no textual basis for making an exception to it for third-party reprisals, and a preference for clear rules cannot justify departing from statutory text.”

Moving to the second question—which the Court felt that it was a more difficult question—the Court analyzed whether Thompson, or any plaintiff in his situation had “standing” to sue his or her employer under Title VII.  Standing is a legal concept that requires a party who wishes to sue to demonstrate that they have sufficient connections to the cause of action to support their participation in the suit.  After a fairly lengthy discussion of the legal principles involve (that I won’t bore you with here), the Court determined that Thompson did have standing to sue and adopted a so called “zone of interest” test.

“Applying that test here, we conclude that Thompson falls within the zone of interests protected by Title VII. Thompson was an employee of NAS, and the purpose of Title VII is to protect employees from their employers’ unlawful actions. Moreover, accepting the facts as alleged, Thompson is not an accidental victim of the retaliation—collateral damage, so to speak, of the employer’s unlawful act. To the contrary, injuring him was the employer’s intended means of harming Regalado. Hurting him was the unlawful act by which the employer punished her. In those circumstances, we think Thompson well within the zone of interests sought to be protected by Title VII. He is a person aggrieved with standing to sue.”

Although Thompson, as Regalado’s fiancé, was well within the “zone of interest,” the difficult question for employers is just how far the “zone of interest” extends?  Does it include friends of the complaining employee?  What if the employer does not know of the alleged connection between the employee who complained and the employee who was disciplined or fired – how will it prove that?  These questions will surely be the stuff of future litigation.

If you have any questions about how this expanded definition of retaliation might effect how you make decisions regarding your employees feel free to give me a call.


Well it must be true.  We have been saying for a while that retaliation claims are on the rise.  I’ve even pointed to these statistics when training managers and HR professionals.  For example, in 1999 25% of the 77,444 charges of discrimination filed with the EEOC had a retaliation claim included.  In 2008, 95,402 charges of discrimination were filed and 35% of them had a retaliation component.  But now The Wall Street Journal is saying it too.  In fact, according to The Wall Street Journal, if you take a look back to 1992 when the government began tracking these statistics, you would see that retaliation complaints have just about tripled.  (See “Employee Retaliation Claims Rise” C. Tuna, The Wall Street Journal, pg. B.1. October 5, 2009.)

                        So, what exactly is a retaliation claim?  Well, remember a while ago when we talked about how to lose an ADA case even when the plaintiff does not have a disability?  Well, this is sort of the same thing, a whole new way to lose a discrimination suit even when you didn’t discriminate.

                        In simple terms, retaliation occurs when you do something bad to someone who is exercising his or her rights under one of the civil rights laws—Title VII, the ADEA, the ADA, you know, one of those.  A bunch of recent court decisions have made it a lot easier for plaintiffs to prove that you did something bad and have really made it a lot easier for the plaintiff to prove that the something you did was “bad.”  “The Supreme Court in Burlington Northern v White eliminated the ‘adverse employment action’ requirement, lowering the bar for plaintiffs who make retaliation claims. Instead, the Supreme Court held that a retaliation claim could be supported if the employer engaged in any act that might dissuade a reasonable worker from making or supporting a discrimination complaint.” 


                        That’s right.  Take some action against someone who files a complaint and if a “reasonable person” thinks it would keep the next guy from filing a charge of discrimination and you have retaliated.  Who you ask is this “reasonable person.”  We can spend a lot of time discussing this nice legal fiction but what it boils down to is the jury is the reasonable person. 

                       So how do you prevent these claims?  You don’t. What you have to do is set yourself up so if you do get a charge of retaliation, you can defend yourself and ultimately win.  If one of your employees files a charge of discrimination or participates in an investigation of a complaint, be sure to treat them just like you would treat an employee who did not file a charge or participate in that investigation.  And train your managers to do the same.  Oh, yea, if you do need to do something to an employee who has filed a charge, even if it is something that seems completely fair, you might want to give us a call before you do.  Remember, all you have to do to lose is do something that would make a reasonable person not file a charge of discrimination