Long on Thompson Third-Party Retaliation Case Update

From the king of all things "retaliation against an employer's family or friends," Alex Long (Tennessee), who has written previously on this topic, has the latest update on the Thompson case:

SCOTUSblog  reports that the Supreme Court has invited the Solicitor General to file a brief expressing the views of the United States in Thompson v. North American Stainless.  Thompson involved an employee, Eric Thompson, who was allegedly fired because his then-fiancée, Miriam Regalado, had filed a charge of sex discrimination with the EEOC over the actions of their shared employer.  In a fractured en banc decision, the Sixth Circuit Court of Appeals held that Thompson did not have a retaliation claim under § 704(a) of Title VII. 

    The petitioner’s brief (co-authored by Eric Schnapper of the University of Washington) correctly notes the rise in recent years in the number of these kinds of claims of associational or third-party retaliation.  As framed by Petitioner, the questions presented are whether § 704(a) forbids an employer from retaliating when an employee engages in protected activity under the statute (such as filing an EEOC charge) “by inflicting reprisals on a third party, such as a spouse, family member or fiancé, closely associated with the employee who engaged in such protected activity,” and, if so, whether the third party may enforce § 704(a)’s prohibition in a civil action. 

    Other employees in Thompson’s shoes have discovered that the language of § 704(a) makes it tough to bring such a claim since § 704(a) only prohibits an employer from retaliating against an employee “because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.”  (emphasis added)  Since it was Thompson’s fiancée, not Thompson, who had engaged in protected activity, the Sixth Circuit concluded that Thompson had no claim. The majority of federal courts have agreed.

    In an effort to sell the importance of this case to the Court, Petitioner argues that third parties, such as Thompson, who suffer reprisals stemming from the actions of a co-worker effectively have no remedy under Title VII.  The result is that employers are essentially permitted to make a mockery of § 704(a)’s prohibition of retaliation.  In addition, Petitioner points out that while the majority of courts have held that third parties have no claim under § 704(a), the courts are split as to whether other federal statutes permit such claims.  Respondent’s Brief in Opposition responds that the statutory language is unambiguous.  Moreover, the effect of permitting such third-party claims would be “chaos” in the workplace as employers would be reluctant to take disciplinary action against their employees for fear that pretty much anyone in the workplace might then claim retaliation based on the actions of a co-worker.  This perhaps explains Petitioner’s attempt to frame the question as whether it is unlawful to inflict reprisals “on a third party … closely associated with the employee who engaged” in the protected activity.  (emphasis added).

    Petitioner’s primary legal argument involves a separate section of Title VII that might allow him to sidestep the problematic language of § 704(a).  Section 706(f)(i) permits a “person claiming to be aggrieved” to bring a civil action.  Although Thompson may not have personally engaged in protected activity, he was nonetheless aggrieved by the employer’s reprisals stemming from the actions of his fiancée, who had actually engaged in protected activity.  Thus, Thompson has a right to sue.  According to Respondent (and the Sixth Circuit), § 706(f)(i) is all about standing. Thus, the question whether Thompson had standing under § 706(f)(i) is separate from the question of whether he has a cause of action under § 704(a).

    Stay tuned for the Solicitor General’s thoughts on the matter …

You can also read Alex's article on this topic.

PS