Associational Retaliation Broadened by US Supreme Court’s Holding that Firing Fiancé of Employee who Filed Charge of Discrimination is Illegal

In an important case, Thompson v. North American Stainless, LP, 131 S.Ct. 863 (January 24, 2011), the US Supreme Court put an end to retaliation against an employee who takes protected activity by retaliating against someone “closely” associated with her. It did so in order to protect the spirit of Title VII’s anti-retaliation provision.

In this case, Ms. Regalado, an employee of defendant North American Stainless, filed a charge of sex discrimination with the Equal Employment Opportunity Commission (EEOC). Three weeks later, the defendant fired her fiancé, plaintiff Thompson. Thompson alleges that his firing was in retaliation for his fianceé’s filing of her charge of discrimination.

The US Supreme Court upheld Thompson’s charge, indicating that, if true, his firing violated the anti-retaliation provisions of Title VII. Relying on the spirit of the anti-retaliation provision, the Court held that the provision was intended to protect against employment actions that “….might have dissuaded a reasonable worker from making or supporting a charge of discrimination”, quoting Burlington Northern & Santa Fe Railway v. White, 548 US 53 (2006). The Court went on to indicate that not all third parties will be protected by this ruling, noting that a close family member will be treated differently than a mere acquaintance.

Although any act of retaliation should really be prohibited by the act, whether foisted upon a close family member or a more distant friend, for purposes of prohibiting employer retaliation, we have to see this case as a glass half full rather than half empty. This case is good news for employees who fear that standing up for their rights will expose not just themselves – but their loved ones – to retaliation. There are many employees who have family members working for the same employer, and thus should be relieved to know they are entitled to this protection.

Jody LeWitter
March 3, 2011