Today, the United States Supreme Court ruled that an employer may be held liable for retaliating against an employee who did not engage in any protected activity, but who has a close relationship with another employee who did engage in protected activity. The ruling was unanimous, with Justice Kagan sitting out. The decision promises to further confound employers and courts, alike, as it opens the door to a potentially broad array of new legal claims. The decision is Thompson v. North American Stainless.
Eric Thompson and his fiancée, Miriam Regalado, both worked for North American Stainless. Regalado filed a charge of sex discrimination against North American Stainless while she and Thompson were still employed there. Only three weeks later, North American Stainless fired Thompson. Thompson sued, claiming that North American Stainless retaliated against him, not because he engaged in any conduct protected by Title VII, but because his fiancée filed an EEOC charge against North American. Today, the Supreme Court concludes that, assuming Thompson’s factual claims prove to be true, Title VII allows him to bring a claim for unlawful retaliation.
The nitty-gritty details of the opinion will be left for other bloggers and, of course, a GT Alert. I write simply to emphasize the most troubling aspects of the Court’s decision, which the Court itself acknowledges. The Court consciously avoids instructing employers or courts on what types of relationships might give rise to Title VII anti-retaliation protections for an employee who does not herself engage in protected activity, other than to note the extremes that a co-worker spouse will almost always be protected against retaliation for a spouse’s protected conduct, while a mere workplace buddy will not likely be subject to protection (although it’s not out of the question). The Court also consciously avoids instructing employers or courts on what types of employer conduct will give rise to a retaliation claim in this setting, other than to rely on its prior decision in Burlington Northern N. & S.F.R Co. v. White, which itself continues to cause feverish head-scratching among employers and lower courts.
In other words, the Supreme Court has told us today that certain workplace relationships will extend Title VII’s anti-retaliation protections to both parties to a relationship, and employers are prohibited from taking certain workplace actions against one participant in that relationship in retaliation on account of the protected activity of the other participant in that relationship. The details of how this all works? The practical, decision-making paradigm for employers dealing daily in the trenches with these issues? It’s anybody’s guess.
Today’s ruling confirms an odd and rising tension in the labor and employment world. While employers are increasingly chided for getting too involved in their employees’ personal lives, and while employees cry out for less scrutiny of their personal lives, decisions such as this force employers to do the very opposite. Instead of just terminating an employee for whatever the reason might be, employers now have to ask themselves a series of questions that didn’t previously appear on the standard pre-termination checklist:
- Is the employee chosen for termination married to, engaged to, dating, or sweet on a co-worker?
- Is the employee chosen for termination the mother, father, daughter, son, aunt, uncle, niece, nephew, or cousin of a co-worker?
- Is the employee chosen for termination really, really, super-good friends with a co-worker, or just really, really good friends, or just good friends, or just occasional backgammon buddies?
If the answer to any of these questions is yes, and the other co-worker has engaged in some form of arguably protected activity, that becomes an instant pre-termination red flag. In other words, at a time when employees want employers out of their lives, employers have to add even more employee-personal and intrusive fact-finding into their discipline and termination decisions.