Amanda R. Walker 2014-01-16 06:53:23
Third-Party Retaliation Claims: Who Has Standing to Sue? Amanda R. Walker is an associate attorney at The Zoppoth Law Firm and concentrates her practice in labor and employment law. Walker is a member of the Kentucky Bar Association, the Louisville Bar Association, the American Bar Association, the Kentucky Justice Association and the Women Lawyers Association. She received her B.S. from the University of Louisville and a J.D. from Northern Kentucky University, Salmon P. Chase College of Law. You can reach Amanda at (502) 568-8884 or email firstname.lastname@example.org. The U.S. Supreme Court, reversing the Sixth Circuit, decided in Thompson v. North America Stainless, 131 S. Ct. 863 (2011) that an employee who suffers retaliation, even though that employee did not engage in any statutorily-protected conduct, could bring a third-party retaliation claim against their employer. Because Kentucky’s Civil Rights Act (KRS Chp. 344) mirrors Title VII of the Civil Rights Act of 1964, the standard set by Thompson would apply to Kentucky retaliation claims brought under KRS 344. In Thompson, Eric Thompson and his fiancée, Miriam Regalado, were employees of North American Stainless (NAS). Regalado filed a sex discrimination complaint against NAS with the Equal Employment Opportunity Commission (EEOC). NAS terminated Thompson three weeks later. Thompson filed suit against NAS under Title VII of the Civil Rights Act alleging that NAS terminated him in retaliation for his fiancée’s EEOC complaint. The Court was presented with two issues in Thompson: 1) Was Thompson’s firing an unlawful retaliation and 2) Did Thompson have standing to sue NAS for retaliation under Title VII? The Court answered “yes” to both issues. As to the first issue, the Court cited to its previous decision in Burlington Northern v. White, 584 U.S. 53 (2006) and explained that Title VII’s anti-retaliation provision prohibits employers from any action that “might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” The Court stated “we think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew her fiancé would be fired.” As to the second issue, the Court used the “zone of interests” test which authorized a person to file suit if his interests arguably are protected by statute. The Court reasoned that Title VII’s purpose is to protect employees from their employers’ unlawful actions and that even though Thompson did not engage in any activity protected by Title VII, he was “well within the zone of interests sought to be protected by Title VII.” Although Thompson did not identify a fixed class of relationships for which third-party retaliation might be actionable, the Court stated, “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.” Since Thompson, a variety of opinions have been issued regarding the types of relationships that meet the Burlington standard, illustrating expansive third-party protections. Brother-Sister: EEOC v. Williamette Tree Wholesale, Inc., No. CV 09-690-PK, 2011, WL 886402 (D. Ore. Mar. 14, 2011) recognized a third party claim by an employee who was fired after his sister filed a sexual harassment complaint with the EEOC. Parent-Child: Zamora v. City of Houston, No. 4:07-4510, 2011 WL 4067860 (S.D. Tex. Sept. 13, 2011) held that Christopher Zamora had standing to bring a third-party retaliation claim when he was demoted by the Houston Police Department after his father filed an age discrimination charge against the Department. Dating Relationships: Harrington v. Career Training Inst. Orlando, Inc. No. 8:11-CV-1817- T-33MAP, 2011 WL 4389870 (M.D. Fla. Sept. 21, 2011) found that Thompson applied to mere dating relationships, as the Court in Thompson did not bar such claims. Best Friend Relationships: In Ali v. District of Columbia Government, 810 F. Supp. 2d 78 (D.D.C. 2011), the employer threatened to fire the Plaintiff’s best friend and co-worker if he continued to proceed with his internal religious discrimination complaint. The Court found that this threat was actionable under the Burlington standard. Spouses Employed by Two Different Employers: In McGhee v. Healthcare Services Group, Inc., No. 5:10-CV-279-RS-EMT, 2011 WL 5299660 (N.D. Fla. Nov. 2, 2011) Thompson was extended to a situation involving two different employers. McGhee was employed by Healthcare Services Group (Healthcare), which was under contract with Sovereign Healthcare of Bonifay (Bonifay) as a vendor where McGhee’s wife was employed. McGhee was terminated by Healthcare after his wife filed a discrimination complaint against Bonifay. The Court held that although Plaintiff and his wife were employed by two different employers, the relationship between them was “clearly intertwined” and that “allowing employers to induce their subcontractors to fire the subcontractor’s employees in retaliation for the protected activity of a spouse would clearly contravene the purpose of Title VII.” However, a different ruling was reached in Underwood v. Dep’t of Fin. Servs. State of Fla., 11th Cir., No. 12-14711 (April 25, 2013) where the Court determined that an employee did not have standing to bring a claim of retaliation against his employer, the Department of Financial Services, after his wife had just settled a discrimination claim against the Department of Health. In light of the Court’s ruling in Thompson and the cases that have followed, practitioners should be aware that Thompson could apply to a seemingly endless combination of employee relationships and adverse employment actions. Watch out as this area continues to develop to see what boundaries the Courts may set for third-party retaliation claims.
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