Tuesday, December 7, 2010
This is a rather busy posting day for the 'ol Workplace Prof Blog. I continue with yet another important labor and employment law development today and that is the U.S. Supreme Court oral argument in a third-party retaliation case under Title VII of the Civil Rights Act of 1964. Here is the oral argument transcript.
You may recall that Thompson v. North American Stainless involves:
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.
Arguing for the appellant, Mr. Thompson, Eric Schnapper (Washington Law) argued in front of the Supreme Court that Thompson should have a claim as an "aggrieved person" under 706(f) even though he did not oppose an unlawful employment practice or participate in a hearing or proceeding under Title VII under Section 704(a). When asked by Justice Alito how closely individuals must be related, Schnapper maintained that the appropriate test is in the Burlington Northern decision: whether a reasonable person would be dissuaded from filing a claim under the law. So, if you fire my spouse or fiancee that would dissuade me, but not if you might fire a rather distant acquaintance of mine. Schnapper was supported by the SG's office in this appeal. This is also the position long maintained by the EEOC.
The attorney for the company maintained that such association retaliation claims are not provided for in the text of Title VII and said the decision of the en banc 6th Circuit Court of Appeals should be affirmed. She also argued the slippery slope saying allowing such a claim would make employers keep track of various types of relationships throughout their workplace.
I have to say that this might be another one of those retaliation cases where this conservative-leaning Supreme Court has consistently, and remarkably, come out in favor of the plaintiff. I am not sure that Justice Alito, the lone dissenter in Burlington Northern will be on board, but Eric Schnapper outlined a textualist argument that might just appeal to the other normally pro-employer Justices.
Going out on a limb, I predict 8-1 in favor of the plaintiff.