On January 24, 2011 the Supreme Court reversed the Sixth Circuit in Thompson v. North American Stainless, LP and extended Title VII retaliation protection to family members of employees who engage in protected activities. The plaintiff in Thompson was fired within a matter of weeks after his employer received notice that his fiancée had filed a sex discrimination complaint with the EEOC. Mr. Thompson brought suit against the employer in Federal District Court claiming that he was fired in retaliation for his fiancée’s EEOC charge. The District Court dismissed the case on summary judgment on grounds that Title VII’s anti-retaliation provision does not cover “third party retaliation” claims. The District Court relied on well-established precedent requiring that a retaliation plaintiff first show that he or she engaged in protected activity. Since Mr. Thompson had not engaged in protected activity, the District Court concluded he was unable to establish a critical element of a retaliation claim. The Court of Appeals for the Sixth Circuit affirmed.
In a surprising decision, the United States Supreme Court unanimously reversed and held that while Mr. Thompson did not personally engage in a protected activity, he experienced the type of harm that Title VII’s anti-retaliation provision seeks to prevent. The Court fell back on its earlier reasoning in Burlington Northern and Santa Fe Railroad Company v. White, 548 U.S. 53 (2006), where it noted that Title VII’s anti-retaliation provision “must be construed to cover a broad range of employer conduct,” and held that the seminal test for retaliation is whether the employer’s action “might have dissuaded a reasonable employee from engaging in the protected activity.” Applying this logic, the Court concluded that a reasonable employee might be dissuaded from engaging in protected activity “if she knew her fiancée would be fired.” Although the Court stopped short of identifying a fixed class of relationships that will give rise to a retaliation claim, it attempted to narrow the reach of its decision by noting, “we expect that firing a close family member will almost always meet the Burlington standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so…”
Despite the Court’s attempt to narrow its ruling, employers should be aware that the practical effect of Thompson is the creation of a new class of plaintiffs who will have standing to maintain a retaliation claim based on the protected activity of family members.