Monday, February 21, 2011
Like many of us, I was pleased with the outcome in Thompson v. North American Stainless, LP holding that Title VII’s antiretaliation principle applies to what has been called third party-retaliation, that is, retaliating against B in response to A’s protected conduct. To be effective, of course, B must be someone who A cares about, and in North American Stainless itself plaintiff claimed that employer retaliated for his fiance’s (Regalado) filing a charge of discrimination against it by firing him (Thompson).
To reach its result, the Court framed the issues as twofold: whether Thompson’s firing in such circumstances would violate Title VII and whether the statute granted Thompson a cause of action.
Dividing the inquiry into two separate questions was scarcely inevitable. I mean, if the firing were illegal but Thompson did not have a claim, the only one who could sue would be Regalado, and it’s not clear what her remedy would be – an injunction in her suit ordering the employer to rehire Thompson? That seems a stretch, and, certainly, normal backpay relief would be inapplicable. It’s conceivable that the Regalado could recover for her emotional distress in causing her finance to be fired, but that’s certainly not the most likely of remedies. In the meantime, under this view, Thompson would suffer loss of backpay and possible other damages and recover nothing.
Of course, that’s not what the Court held – it not only found a violation but also held that Thompson could sue, with Justice Scalia writing for a unanimous Court (Kagen recused and Ginsberg/Breyer, who concurred on deference to the EEOC grounds, also joined the Court’s opinion).
Still, this somewhat labored line of analysis suggested that something else was up, and I have learned to look for the hook when the Court dangles an especially juicy worm. I didn’t have far to seek. For the Court, the “more difficult question” was standing. And Scalia began this portion of the opinion rejecting “dicta” in earlier Fair Housing Act cases suggested that Title VII “person aggrieved” standing reached as far as Article III would permit. Such dictum turns out to be “ill-considered.”
Like Goldilocks, Scalia found Article III standing too broad but limiting standing to the employee who engaged in the protected conduct too narrow. Instead, the "just right" standard was drawn from the Administrative Procedure Act, permitting suit by those within the “zone of interests” the statute was designed to protect. Applying that test, Thompson was not mere “collateral damage” of the violation and could therefore sue.
I've never understood "zone of interests" -- except as a phrase that gives the court leeway to allow a plaintiff to sue or not as it chooses. So I'm a little concerned that the test may be used to contract the statute's reach. But beyond that, Scalia's use of the term “collateral damage” does not exactly clarify the issue. Scalia can’t be saying that plaintiffs who are hurt by virtue of discrimination targeted against others suffer only collateral damage and can't sue – that exactly describes Thompson!
And how about those, like the male plaintiffs in Anjelino v. New York Times, 200 F.3d 73 (3d Cir. 1999), who claimed to have been denied employment because the employer did not want to hire women higher up on the eligibility list? They seem to be collateral damage within Scalia’s formulation, which would make the Third Circuit's grant of standing to them incorrect.
But it’s not clear why they are different from Thompson. It’s true that the employer allegedly intended to act against Thompson in order to hurt Regalado, while the Anjelinoemployer, by hypothesis, would have been happy to hire the males if it didn’t have to hire females. But presumably North American Stainless would have been happy to keep Thompson if it didn't want to retaliate against Regalado.
In any event, what’s the point of splitting these hairs when the Court seems to concede there’s a violation to begin with? In Anjelino, had both men and women sued, should the remedy be limited to requiring the employer to hire the females because the males had no standing?
The good news is that the Court did not, expressly at least, overturn the cases that accorded standing for those denied the benefits of interracial association. I assume the interest of whites in asociating with women on a position of equality in the workplace continues to be within Title VII's zone of interests.
In any event, maybe, establishing third-party retaliation standing in North American Stainless is worth the trade-off a unanimous decision contracting the reach of Title VII standing more generally. I leave it to wiser heads to figure that out.
Postscript. The North American Stainless Court avoided deciding which third parties might be protected by its rule – probably “firing a close family member” and probably not “milder reprisal against a mere acquaintance,” but “beyond that we are reluctant to generalize.” Context is apparently all. But the Court did stress “the provision’s standard for judging harm must be objective.” That might literally be true if limited to "juding harm,"
But the logic of the underlying claim – that retaliation is actionable when likely to deter a reasonable employee from engaging in protected conduct-- suggests that subjectivity needs to enter the picture where the employer's motives are concerned. Isn't the correct test whether the actual employer (not a reasonable one) actually believed that acting against B would deter/punish protected conduct by a reasonable employee in A's position?