In Thompson v. North American Stainless, the United States Supreme Court established that Title VII third-party retaliation claims exist. Specifically, an employer will be liable for retaliating against an employee who engaged in protected activity by terminating her fiancé. Now, employers are left wondering, “If firing the fiancé creates liability, what other relationships are covered?”
Justice Scalia, writing for a unanimous court (absent Justice Kagan who did not participate), provided some guidance but left many lines still to be drawn. Let’s start with the rule to be applied. The employer may be liable for retaliation where its actions “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination” (aka the Burlington standard). That’s nice and all, but how is it applied?
The opinion lacks any real analysis regarding why firing the fiancé is sufficient to establish retaliation. Justice Scalia just states that the Court has “little difficulty” because it’s “obvious” that firing the fiancé meets the Burlington standard. While I agree, that’s not going to be much help in analyzing other situations. For example, whether suspending an employee’s girlfriend for seven days meets the standard is not-so-obvious.
Justice Scalia suggests that there are two factors that determine whether third-party retaliation is unlawful under Title VII: 1. The nature of the relationship; and 2. The severity of the employer’s action. Thus, he states: “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.” What about terminating a mere acquaintance? Or a “milder reprisal” against a “close family member”? And what about not-so-close family members?
We know the ends of the spectrum, but employers are largely left in the dark with everything in between. The district and circuit courts will start to fill those gaps as the third-party retaliation claims hit the courts. Chances are, there will be a lot more third-party claims now that the Supreme Court has blessed them. For now, employers will just have to be careful when taking actions against employees known to have some relationship to an employee who engaged in protected activity.
Phil Miles is an attorney in McQuaide Blasko’s Labor and Employment Law Practice Group and publisher of Lawffice Space, an employment law blog.