On January 24, 2011, the U.S. Supreme Court (in an opinion authored by Justice Scalia) unanimously held that an employee (Eric Thompson), who was fired after his fiancee Miriam Regalado filed an EEOC charge alleging sex discrimination, could assert a claim for retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et. seq. (“Title VII”). The decision is Thompson v. North American Stainless, L.P., 131 S.Ct. 863 (2011).
The trial court dismissed Thompson’s complaint on the ground that Title VII “does not permit third party retaliation claims”. 435 F.Supp.2d 633, 639 (E.D. Ky. 2006). The Sixth Circuit (ultimately, following rehearing en banc) affirmed, holding that because Thompson did not “engag[e] in any statutorily protected activity, either on his own behalf or on behalf of” his fiancée, he “is not included in the class of persons for whom Congress created a retaliation cause of action.” 567 F.3d 804, 807-08 (6th Cir. 2009). The Sixth Circuit thus concluded that “retaliation is … actionable … only in a suit by a primary actor who engaged in protected activity and not by a passive bystander.”
The Supreme Court disagreed and reversed.
1. Defendant’s firing of Thompson constituted unlawful retaliation under Title VII.
Initially, the Court had “little difficulty concluding that if the facts alleged by Thompson are true, then [defendant’s] firing of Thompson violated Title VII”. The Court relied on its own precedent and the statutory text to conclude that Title VII’s anti-retaliation provision is broader than its anti-discrimination provision, in that the former “is not limited to discriminatory actions that affect the terms and conditions of employment” and “prohibits any employer action that well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”
Applying this principle, it concluded that it was “obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiance would be fired.” Title VII’s broadly-worded anti-retaliation provision was, in the Court’s view, at odds with “a categorical rule that third-party reprisals do not violate Title VII.” While the Court observed that “firing a close family member will almost always” constitute unlawful retaliation and that “inflicting a milder reprisal on a mere acquaintance will almost never do so”, it declined to generalize.
2. Assuming Thompson’s termination constituted unlawful retaliation under Title VII, Thompson has a cause of action for retaliation under Title VII.
The Court had more difficulty with the question of whether Title VII granted Thompson, the fired fiancé, a cause of action. In answering this question “yes”, the Court relied on Title VII’s provision that states that “a civil action may be brought … by the person claiming to be aggrieved.” 42 U.S.C. 2000e-5(f)(1).
While the Court declined to construe the term “aggrieved” to extend to any and all injuries sufficient to confer Article III standing, it saw no basis for limiting that phrase “to the person who was the subject of unlawful retaliation”. Rather, the Court held that Title VII incorporates the Administrative Procedure Act’s “zone of interests” test, which provides that a “plaintiff may not sue unless he falls within the zone of interests sought to be protected by the statutory provision whose violation forms the legal basis for his complaint.” Thus, the term “aggrieved” in Title VII “enabl[es] suit by any plaintiff with an interest arguably sought to be protected by the statutes … while excluding plaintiffs who might technically be injured in an Article III sense but whose interests are unrelated to the statutory prohibitions in Title VII.”
The Court determined that Thompson fell within the “zone of interests” protected by Title VII, since he was an employee of defendant, and “the purpose of Title VII is to protect employees from their employers’ unlawful actions.” In addition, Thompson was neither an “accidental” victim of retaliation, nor “collateral damage” of defendant’s unlawful act; rather, “injuring him was the employer’s intended means of harming” his fiancée and “[h]urting him was the unlawful act by which the employer punished her.” Accordingly, Thompson was “well within the zone of interests sought to be protected by Title VII” and hence was “a person aggrieved with standing to sue.”
Conclusion
In light of Thompson, employers should carefully evaluate any and all contemplated actions that may arguably be considered retaliatory, even if they are not specifically directed at the person engaging in protected activity. It remains to be seen how lower courts will interpret Thompson‘s “zone of interests” rule in Title VII retaliation cases.