United States Supreme Court Extends Protection From Retaliation To Third Parties

Previously published in the New Hampshire Bar News, May 2011

Retaliation claims under Title VII have been on the rise in recent years. The Equal Employment Opportunity Commission (EEOC) reported that in 2010 nationwide retaliation claims topped the list of discriminatory filings, surpassing the number of race discrimination claims for the first time. The United States Supreme Court's recent decision in Thompson v. North American Stainless, LP broadens the protections of Title VII's antiretaliation provision to include third parties who are in a "zone of interests" with an employee who has complained of discrimination. This phenomenon has been referred to colloquially as "associational discrimination." The holding in Thompson is likely to further increase the number of retaliation claims being filed.

The plaintiff in the case, Eric Thompson, and his fiancée, Miriam Regalado, were both employees of North American Stainless (NAS). In February 2003, NAS received notice that Ms. Regalado had filed a charge of sex discrimination against the company. Three weeks later, NAS fired Mr. Thompson. Mr. Thompson filed a charge of retaliation under Title VII with the EEOC. Efforts at conciliation proved unsuccessful, and Mr. Thompson brought a lawsuit claiming NAS had fired him in order to retaliate against Ms. Regalado for filing her charge with the EEOC.

The District Court granted NAS summary judgment, determining that Title VII does not include retaliation claims for third parties. 435 F.Supp.2d 633 (E.D.Ky. 2006). The Sixth Circuit Court of Appeals, after a panel reversed the District Court, affirmed, concluding that Mr. Thompson had not engaged in any statutorily protected activity and that he was not included in the class of persons for whom Congress created a retaliation cause of action. 567 F.3d 804 (2009). The United States Supreme Court granted certiorari.

Title VII, , 42 U.S.C. § 2000e-3(a), makes it unlawful for an employer to discriminate against its employees (1) because the employee has opposed any practice made an unlawful employment practice under Title VII, or (2) because the employee has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under Title VII. It further provides that "a civil action may be brought...by the person claiming to be aggrieved...by the alleged unlawful employment practice." 42 U.S.C. § 2000e-5(b), (f)(1).

In Thompson, it was undisputed that Ms. Regalado's...