Yesterday, in a long-awaited and important decision, the United States Supreme Court unanimously held that the anti-retaliation provision of Title VII protects employees from termination where that employee was the fiancé of another employee who exercised her rights under the statute to file a discrimination complaint.
In Thompson v. North Am. Stainless, LP, a female employee filed a gender discrimination charge with the EEOC, and a few weeks later, her fiancé, and co-employee, Eric Thompson, was fired by their mutual employer. Although Thompson had not filed the original EEOC charge nor made any claim of discrimination, and, therefore, under traditional principles possessed no Title VII claim himself, he nonetheless filed a claim for retaliation, contending that he was fired simply because of his association with the charging employee – his fiancé.
The lower appeals court had previously ruled that the Title VII anti-retaliation provision did not apply to Thompson since he did not file a discrimination claim. The Supreme Court, however, ruled that this anti-retaliation provision must be read broadly, and not be given a literal interpretation, which would defeat the purpose of Title VII. Justice Scalia stated that Thompson’s claims were within the “zone of interest” that are protected by the provisions of Title VII, and that a “reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.” Justice Scalia further stated that “[h]urting him was the unlawful act by which the employer punished her.”
Significantly, the Court did not create a “bright line” to determine what type of association or relationship the terminated employee must have with the complaining employee.
What is an Employer to Do?
“Associational discrimination” claims, such as that put forth by Thompson, do not mean that employers need to walk on eggshells around employees in order to comply with the law, or to change their (hopefully) compliant employment practices. Rather, employers (and their human resource professionals) need to re-focus on who is protected by Title VII, and who can file a charge of discrimination.
The answer, based upon this new decision, now appears to be a close or intimate family member or friend of employees who are also employees. An employee’s ability to bring a claim for associational discrimination raises the troubling question for the employer which the Court in Thompson left hazy, namely, who is an associated person for purposes of the statute? Lower appeals courts which have been faced with claims of associational discrimination have so far held that a parent and child, a husband and wife, engaged fiancés, and even two people dating are considered closely enough associated to warrant a so-called “third party claim” under Title VII.
Though we could locate no court which has gone further to hold, for example, that distant friends or casual acquaintances are associates (and the Supreme Court seemed not to be favorably disposed to such claims), this result may not be far off based on the direction in which the lower courts are moving in interpreting the civil rights statutes.
As with any employee who has filed a complaint or charge of discrimination, to ward off retaliation claims an employer is well advised to take a “business as usual” approach and act as if no complaint had been filed; treat that employee like any other employee; engage in open, non-intimidating communication with the employee to find common ground while the investigation or litigation is pending; and, of course, document all decisions and pre and post-complaint performance issues that might result in discipline.
The new twist here is the existence of an employee’s “associate” – be it close friend or family member. Because of current uncertainty in this area of the law, we suggest that employers who have actual knowledge of their employees’ “associations” should treat these “associates” as they would the charging party. For example, if an employer knows an employee is “associated” or “intimate” with a person of another race or gender, the employer must be aware that the employee may “take on” the race or gender of his associate for the purposes of claiming discrimination under Title VII. Similarly, if an employer knows that an employee who has filed a claim or complaint has a close friend or relative who is also employed by the employer, the employer should treat that associate with the same degree of care and deference (as outlined above), as it would the complaining employee.
To protect against these retaliation claims by such associates, employers may want to institute a policy requiring or encouraging all employees to disclose to the human resources department any familial or marital relationships with fellow employees. And, as always, keep thorough records of all employees’ performance issues as they occur.