Monday, January 24, 2011
Another Unanimous US Supreme Court Decision: Third-Party Retaliation Claims within the "Zone of Interest" Cognizable
Thanks to Scott Bauries (Kentucky) for bringing to our attention the decision this morning in an important relation case in the employment discrimination context. You might remember our discussions previously about Thompson v. North American Stainless:
[That case 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.
The Supreme Court unanimously reversed in an opinion by Justic Scalia, with Justices Ginsburg and Breyer concurring and Justice Kagan taking no part in the decision (I had predicted 8-1 in favor of plaintiff after oral argument). The Court adopted the “zone of interests” standing test from administrative law and held that the Plaintiff, as the fiancé of the employee retaliated against, is within the zone of interests protected by the Title VII retaliation provisions:
[The Court described the] “zone of interests” test as denying a right of review “if the plaintiff’s interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.”
Ginsburg concurred separately, with Breyer joining her, to emphasize that the "decision accords with the longstanding viewsof the Equal Employment Opportunity Commission (EEOC), the federal agency that administers Title VII."
Kudos to colleague and friend Eric Schnapper (Washington) who successfully argued this case for plaintiff!
While I'm of course pleased with the result, I am less pleased with two aspects -- the first is the reiteration of the notion that retaliation is subject to a looser standard than discrimination. I think the Court is setting up for a pretty narrow view of "adverse employment action."
Second,the Court ultimately adopted a narrower approach to antidiscrimination law standing than prior precedents had suggested. I think it pretty unlikely that, say, a male would have a claim when he was not hired because an employer doesn't want to hire a woman who ranks above him in qualifications. My guess is that such a person would be "collateral damage" under the Court's opinion.
Posted by: Charlie Sullivan | Jan 25, 2011 8:17:12 AM
I think this decision yet again demonstrates how farcical Gross v. FBL was. Evidently, it's not OK to transpose the "mixed motive" framework from Title VII into the ADEA, but it IS OK to transpose the APA's "person***adversely affected or aggrieved****within the meaning of a relevant statute" standard even though that language is not in Title VII or any other civil rights statute (although admittedly the "person aggrieved" language in Title VII is somewhat similar).
Posted by: Observer | Jan 24, 2011 9:52:17 AM