Joanna L. Grossman

Protection Against Workplace Retaliation: The Supreme Court Hears Argument in Thompson v. North American Stainless, Part Two in a Two-Part Series

By JOANNA L. GROSSMAN and DEBORAH L. BRAKE
Tuesday, December 7, 2010

In the first column in this two-part series, we described the facts and lower-court decisions in a Title VII retaliation case that is being argued this week in the Supreme Court, Thompson v. North American Stainless. In this column, Part Two in the series, we preview the arguments in the case and explain the core issues at stake.

The Employer's Position: A Strict and Literal Reading of the Statute

North American Stainless rests its argument largely on the text of Section 704(a) of Title VII, the main federal anti-discrimination statute. It reads Section 704(a) to mean that the employee who is suing for retaliation must be the same person as the employee who engaged in the protected activity (here, filing a charge alleging discrimination with the EEOC).

Title VII's prohibition on retaliation makes it an unlawful employment practice for an employer to discriminate against "any of his employees. . .because he has . . . [engaged in protected activity]." Stainless reads the "he" (describing the person who engaged in protected activity) as referring back to the "employees" who are protected from discrimination under this provision.

In other words, since, in the Thompson case, the person suing for retaliation did not engage in any protected activity himself, North American Stainless contends that he is not protected from retaliation.

(As readers may recall from Part One, Thompson's fiancé, Miriam Regalado filed an EEOC charge, but it was Thompson, who also worked at North American Stainless, who subsequently was fired. Regalado's filing the charge was indisputably a statutorily-protected activity, but Thompson did not take part in that activity. No one disputes that had Regalado been fired for filing her EEOC charge, she could have sued the company. The question is whether Thompson also has that right.)

North American Stainless also argues that the Supreme Court's prior ruling in Burlington Northern supports this reading of the statute, since the Court in that case linked the statute's protection from retaliation to the conduct of the employee, as distinguished from the employee's status. North American adds that retaliation against an employee who is a close relation of the complainant can be adequately addressed through legal action that is taken by the person who engaged in the protected conduct.

Thus, the company argues, Regalado could have brought a retaliation claim on her own behalf -- based on the firing of her fiancée. In other words, the company says that she could have alleged she was retaliated in that her fiancé was fired, an act that she could allege also harmed her.

The Employee's Position: A Purpose-Driven Reading of the Statute

Thompson, on the other hand, argues that the text of the statute does not foreclose third-party retaliation claims like the one he has brought. Thompson agrees that the core retaliation provision makes it unlawful to discriminate against an employee who, like Regalado, engages in protected conduct. But he contends that firing someone who is closely associated with the complainant is clearly a way to retaliate against the complainant for engaging in protected conduct.

Thompson points out that Section 704(a) does not purport to limit the class of persons who can sue to enforce the Act. The EEOC, for example, is empowered to sue by other provisions in the statute, even though the EEOC is never mentioned in Section 704(a).

In support of his right to sue, Thompson invokes a different provision of the statute, Section 706(f), which authorizes civil actions to be brought by an "aggrieved" person. Thompson fits that bill: as someone fired for his then-fiancée's protected activity, he has been "aggrieved" by the violation of 704(a).

In support of his argument, Thompson relies heavily on the purposes of the retaliation provision and the policy goals of Title VII. Retaliating against a loved one is an ancient form of retribution. Firing, or threatening to fire, an employee's spouse or fiancée is surely just as chilling as threatening the complaining employee's own job. It is also an action that is likely to deter a reasonable employee from complaining--the touchstone for unlawful retaliation that the Supreme Court adopted in its Burlington Northern decision.

As we discussed in Part One of this series, the Burlington Northern case already made clear that retaliation need not come in the form of reprisals that change the terms or conditions of the complaining employee's job. To the contrary, retaliation that is not work-related is prohibited if it would be reasonably likely to chill complaints.

Notably, the United States has weighed in on the side of Thompson, highlighting the longstanding EEOC practice of allowing third-party retaliation claims.

What's at Stake: The Effective Enforcement of a Whole Set of Federal Antidiscrimination Statutes

All of our major federal employment-discrimination statutes, including Title VII, depend on private enforcement and the willingness of individuals to come forward and challenge perceived discrimination. Thus, the question of whether third parties (such as, here, Mr. Thompson) can raise retaliation claims is not limited to Title VII alone.

Indeed, the same question has arisen under other federal employment statutes, including the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Family and Medical Leave Act, the Rehabilitation Act of 1974, the Equal Pay Act, 42 U.S.C. Section 1981, and Title IX. Although there are textual differences in these statutes, the Court's decision in the Thompson case will likely have spillover effects in the treatment of third-party retaliation claims under these other statutes as well.

What is ultimately at stake in the Thompson case is the Court's commitment to protecting the policy objectives of Title VII (and, potentially, these other statutes as well). Comprehensive protection from retaliation is essential to the design of Title VII, and to all of our federal antidiscrimination statutes, as the Court has repeatedly recognized.

Permitting employers to retaliate against a complainant by going after that person's spouse (or other close relation) would threaten the integrity of Title VII's enforcement scheme. The Court will have to consider how the standard it adopted in Burlington Northern, defining the scope of retaliation to encompass employer actions that are likely to deter a reasonable employee from complaining, applies to this situation. When an employee has relatives, intimate partners or close friends as coworkers, what better way to deter that employee from complaining than to fire someone to whom they are deeply attached?

In some cases, the complainant may even care more about that person's job than his or her own. (For example, a young person who has just joined a parent's company may be terrified that his or her own EEOC filing could cause the parent to be fired and lose retirement benefits.) The employer who retaliates in such fashion borrows a lesson from the Godfather movies: "Hit 'em where it hurts." Letting such employers off scot-free would severely undermine the policy objectives of Title VII.

Because of the terrible policy consequences of allowing third-party retaliation, some courts have come up with alternative ways of forcing these claims into other doctrinal boxes, such as by casting the person whose job is adversely affected into the role of a supporter of the person who engaged in protected conduct. So as not to open the door to all third-party retaliation claims, however, such decisions draw a line between employees who "actively" support the complainant and those who do so only passively. Such a distinction would protect the spouse who reads and edits the complaining employee's letter to the EEOC, but not the spouse who offers only emotional support.

Protection from retaliation should not depend on falling on the right side of such an artificial line. Either way, the firing of the spouse is a sure-fire way to hurt the employee who complained of discrimination, and sure to silence other employees who might be contemplating similar complaints. And even so-called "passive" support is crucial to enabling employees to find the courage to speak out against discrimination. Research shows that an employee's willingness to challenge perceived discrimination is directly affected by his or her perceived social support for doing so. A simple kitchen-table conversation with a supportive, listening spouse may make all the difference.

Can Employees Who Engage in Protected Conduct Adequately Protect the Rights of Third Parties?

One response to the policy arguments we have offered above is that employees who engage in protected conduct can always sue for retaliation when a spouse is retaliated against, and their claims alone are sufficient to protect the rights of third parties. For instance, in this case, it is argued, Ms. Regalado could have sued for retaliation, in addition to bringing her underlying claim, and by bringing such a suit, she could have vindicated the interests of her now-husband, Mr. Thompson.

There is no question that employees such as Ms. Regalado can -- and should be able to -- sue for retaliation when an employer lashes out against a close friend or relative in order to punish the complainant. However, it is not at all clear that such claims will suffice to protect the interests of third parties or effectively deter employers from taking such retaliatory actions -- for several reasons.

First, the person whose spouse is fired has a very different legally redressable interest than that of the actual spouse who is fired. An employee in the position of Ms. Regalado may recover damages for the emotional harms of the firing of her spouse and the resulting harms to that relationship, and she may possibly obtain injunctive relief to prevent future recriminations. However, she likely will not be able to vindicate the distinctly different interests of the spouse -- who would seek to recover his or her lost backpay and lost job.

Moreover, the interests of the complainant and the third party may not align, or may start out in sync but diverge in the course of litigation. For example, the employee who engaged in protected conduct may not be willing to risk further retaliation in order to vindicate the rights of a fired spouse or friend. Or even if the employee who engaged in protected conduct is willing to vindicate the fired spouse or friend's interests at the outset, a rift in their relationship may develop.

What if Mr. Thompson and Ms. Regalado's relationship had ended in the midst of the litigation? It is never a good idea to depend on someone else to enforce one's own legal rights, and here, we are not talking about arm's length business transactions, but friendships and romantic relationships. A lawyer often can continue to represent a difficult client well, but can an angry spouse represent his or her estranged partner's interests?

In short, the policy objectives at stake in such cases cannot be sidestepped by passing off the right to sue to the employee who engaged in the protected conduct in the first place. To do so leaves the person who suffered retaliation in too vulnerable a position, and the employer insufficiently deterred from taking such egregious action.

A Contest over Methods of Statutory Interpretation

The competing arguments of the Petitioner (Mr. Thompson) and Respondent (North American Steel) may force the Court to take sides in longstanding debates over the methodology of statutory interpretation, as well as the statute's ultimate meaning.

The most strictly text-based reading of Section 704(a) leads to unequivocally terrible policy results, counter to the integrity of the statute's enforcement design.

This raises an important question: To what extent should considerations of legislative intent and overall statutory design weigh against strict textual readings of specific statutory provisions?

It also raises a related question: How firm is the Court's commitment to its recent line of precedents emphasizing the necessity of comprehensive protection from retaliation as fundamental to the integrity of federal antidiscrimination law?

These questions lie at the heart of Thompson v. North American Stainless and make this truly a case worth watching.


Joanna Grossman, a FindLaw columnist, is a professor of law and John DeWitt Gregory Research Scholar at Hofstra University. She is the coeditor of Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press 2009), and the coauthor of a forthcoming book entitled Inside the Castle: Law and the Family in Twentieth Century America (Princeton University Press, forthcoming 2011). Her columns on family law, trusts and estates, and discrimination may be found in the archive of her columns on this site.

Deborah Brake is a professor of law and Distinguished Faculty Scholar at the University of Pittsburgh. Her research focuses on sex discrimination in employment, education, and athletics. Her book, "Getting in the Game: Title IX and the Women's Sports Revolution," was recently published by N.Y.U. Press.

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