New Types of Retaliation: Are You Watching Out For and Preventing “Associational Retaliation” Claims?

Do you have employees who are related or who are dating one another? I suspect most of you do. Did you know that if one employee complains of discrimination, and you happen to discipline the related employee around the same time, you could be liable for retaliation under federal law? The U.S. Supreme Court recently said “yes” to this question, so based on this decision, you as an employer may need to take extra care when disciplining employees who are related or dating.

“How can this happen,” you say? You thought the only person who could bring a lawsuit would be the person who was complaining of discrimination, right? Wrong. Suppose you have an employee Susan, who is the sister of employee Nick. Susan files a complaint with the EEOC that she is being discriminated against by her supervisor John, claiming that he sexually harassed her. Several weeks after Susan complains, you fire her brother Nick. The Supreme Court has now said that Nick can bring a claim alleging that you fired him to retaliate against Susan for filing a discrimination claim with the EEOC. Confusing? You bet!

The facts of Thompson v. North American Stainless

Here are the facts of the Supreme Court case, Thompson v. North American Stainless, LP. As you know, employers cannot retaliate against an employee for engaging in protected activity, such as making a complaint of discrimination. Specifically, under Title VII of the Civil Rights Act, it is unlawful to retaliate against an employee who has opposed a practice made unlawful by Title VII or “made a charge, testified, assisted, or participated in any manner” in a discrimination investigation, proceeding or lawsuit. Before Thompson, the only persons who had successfully asserted retaliation claims were employees who had themselves engaged in protected activity.

In Thompson, two employees, Miriam Regalado and Eric Thompson, were engaged to be married, and both worked for the same employer, North American Stainless (NAS). Miriam filed a charge of discrimination with the EEOC against NAS. A short time later, NAS fired her fiancé Eric. He then sued, claiming that the only reason NAS fired him was to retaliate against Miriam because she had engaged in protected activity – i.e. she complained of discrimination to the EEOC. Eric admitted that he had not engaged in any protected activity on his own. In other words, he had not complained about discrimination, nor had he complained about any discrimination against his fiancée by NAS.

The trial court and the Sixth Circuit Court of Appeals found in favor of NAS, ruling that Title VII protects from retaliation only employees who have actually engaged in activity protected by the law and that the statute does not protect employees who are merely related to such an individual.

The U.S. Supreme Court disagreed and held that the fiancé (Eric) could sue for retaliation because he fell within the “zone of interests” protected by Title VII. The Court found that Title VII’s anti-retaliation provision must be interpreted to cover a broad range of employer conduct. Thus, the anti-retaliation provision covers any employer action that might dissuade a reasonable worker from making or supporting a charge of discrimination.Under the facts of Thompson, the Court concluded that a reasonable worker might be dissuaded from filing a discrimination charge with the EEOC if he or she thought that his or her fiancée might get fired. Accordingly, Eric Thompson could proceed with his lawsuit, claiming that he had been fired by NAS as a way to retaliate against his fiancée for complaining to the EEOC.

What does this mean for you as an employer?

Retaliation lawsuits have been on the rise and this decision expands the types of retaliation claims that may be brought under Title VII. Now retaliation claims can be brought by an employee related to another employee – so-called “associational retaliation.” But you ask – who can bring this type of claim? Do the employees have to be related or engaged to be married? What if employees are “just friends”? Unfortunately for employers, the Supreme Court refused to identify a fixed class of relationships for which third-party reprisals are unlawful: “We expect that firing a close family member will almost always meet the . . . standard” for alleging a claim of retaliation, whereas “inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize.”

Thus, I recommend that you exercise caution when handling complaints of discrimination, as well as when handling employee discipline of family members or close acquaintances of employees who have complained of discrimination, in order to avoid actual or perceived retaliation. Additionally, having good documentation in support of discipline decisions – particularly documentation that shows a track record of poor performance – will be one way to counter these types of retaliation claims.

Nancy Anderson, a shareholder in Graham & Dunn’s Labor and Employment team, brings with her nearly twenty years of experience in representing and advising employers on all types of employment law claims and compliance with federal and state labor and employment law. She is a regular speaker on wage/hour and employment law issues, and has authored numerous articles on defending wage and hour claims and class actions. In the coming months, Nancy will continue to write in more detail on this issue as well as other suggested topics.

Adam BelzbergAdam Belzberg is an Associate with Graham & Dunn’s Labor and Employment team and represents management in all aspects of labor and employment law, defends employers with regard to claims of employment discrimination, wage and hour compliance, employment torts and contracts, and unfair labor practices. In addition to his litigation practice, Adam regularly provides advice and counsel to employers on labor and personnel management issues.

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