Retaliation: Already a Bad Dream, Now a Nightmare

What Happened in the Supreme Court Case?

In the recently-decided case, Eric Thompson and his fiancée Miriam Regalado were employees of North American Stainless LP (NAS). Regalado filed a sex discrimination complaint with the EEOC, and three weeks after receiving notice of the charge, NAS fired Thompson. He then filed his own charge with the EEOC, claiming his termination was in retaliation for Regalado’s initial complaint.

The Supreme Court’s decision, which reversed a lower court decision, found that “Title VII’s anti-retaliation provision must be construed to cover a broad range of employer conduct,” in this case, third-party retaliation. (The case, which was decided in January, was Thompson v. North American Stainless.)

To be a little more specific, Title VII allows a “person aggrieved” to file a civil action. In defining "person aggrieved," the Court relied on a "zone of interests" test. The test permits a person to sue if he or she "falls within the ‘zone of interests’ sought to be protected by the statutory provision whose violation forms the legal basis for his complaint."

In other words, say the justices, injuring Thompson “was the employer’s intended means of harming Regalado. … In these circumstances, we think Thompson was well within the zone of interests sought to be protected by Title VII.”

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NAS had argued that allowing Thompson to sue would open employers up to retaliation lawsuits from everyone who gets terminated who has any connection to a complaining employee.

In response, Justice Scalia wrote in the opinion, "We expect that firing a close family member will almost always meet the standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize."

What Does It Mean on the Factory Floor?

What can we learn from the suit? Basically, there are two things to learn:

1. Retaliation or the appearance of retaliation are now an even more important issue for training and for HR management.
2. There is another class of people under the “umbrella of protection” over those who engage in protected activity: close associates may now be protected.

We have always advocated extreme caution when considering the termination of an employee who has engaged in a protected activity. And now, terminating an employee who may be in the “zone of interests” creates another challenge for employers. However, the mere fact that a worker has filed a complaint should not alone prevent an employer from terminating an otherwise undesirable employment relationship.

That is, as long as the termination is warranted, is not imposed on a pretext, and is consistent with past practice.

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The best possible protection against a claim of retaliation is a written disciplinary record demonstrating that there was a legitimate and nondiscriminatory reason supporting the action. An employer should be able to show that clear, understandable work rules and disciplinary policies were communicated to the employee and that the company personnel policies were applied consistently in the case at hand.

In tomorrow’s Advisor, tips for avoiding retaliation lawsuits, and an introduction to a unique 10-minute-at-a-time training system for your supervisors and managers.

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