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Supreme Court Allows Third-Party Retaliation Claim Under Title VII

By Effie D. Silva, Litigation News Associate Editor – April 8, 2011

The U.S. Supreme Court’s unanimous decision in Thompson v. North American Stainless, LP [PDF] opens the door for a new type of Title VII retaliation claim. The Court analyzed whether a third party, who is fired after a close friend or family member working at the same company makes a discrimination complaint, can fall within the protections of Title VII. The Court held that third parties may fall within the “zone of interests” protected by Title VII when the firing is alleged to be an unlawful act taken with the intent to punish the person who filed the discrimination complaint.

Case Background
Thompson and his fiancee were both employed by North American Stainless. Thompson’s fiancee filed a charge with the Equal Employment Opportunity Commission alleging sex discrimination in violation of Title VII. Three weeks later, NAS terminated Thompson.

As a result, Thompson filed his own EEOC charge alleging that his termination was in retaliation for his fiancee’s claim. After the EEOC found reasonable cause to believe that NAS fired Thompson in retaliation for his fiancee’s protected activity, Thompson filed suit against NAS. The district court, however, granted the NAS’s motion for summary judgment, concluding that Thompson did not fit within the class of persons Congress intended to protect under Title VII because Title VII “does not permit third party retaliation claims.”

On appeal, the Sixth Circuit Court of Appeals initially reversed. After a rehearing en banc, however, the court affirmed and held that Thompson was not protected by the antiretaliation provisions of Title VII because he did not personally engage in statutorily protected activity.

The Supreme Court reversed the Sixth Circuit’s decision. The Court based its conclusion on prior precedent holding that the antiretaliation provisions of Title VII must be construed broadly to encompass any employer action that might dissuade a “reasonable worker” from making or supporting a charge of discrimination. The Court held that Thompson had standing to bring a retaliation claim under Title VII as a “person aggrieved” because he was fired by NAS with the alleged intent to harm his fiancee for filing her EEOC charge of discrimination against the company.

The Reality of the Court’s Decision for Practitioners
“I think the significance of this decision is both the holding and the explicit reaffirmation and ratification of Title VII's retaliation provisions,” says Paul E. Lehner, Chicago, cochair of the ABA Section of Litigation’s Solo and Small Firm Committee. “The holding is not limited to retaliation against family members or spouses,” says Lehner.

In fact, the Court specifically noted: “[w]e expect that firing a close family member will almost always meet the [standard], and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize.” The Court also noted that an “objective” analysis of the particular circumstances must be made, but refused to articulate any “comprehensive set of clear rules.” Lehner believes the Court’s decision will lead “to some interesting district court cases seeking to define the parameters of the ‘class of relationships for which third-party reprisals are unlawful.’”

“The Court’s opinion is careful to emphasize that the inquiry has to be objective,” says Betsy P. Collins, Alabama, cochair of the Section of Litigation’s Pretrial Practice and Discovery Committee. “Until that standard is fleshed out and better-refined,” Collins believes, “employers will struggle to figure out what their potential liability is when dealing with employees who are in relationships with each other.”

“As an in-house attorney,” says Laura McLaughlin, St. Louis, cochair of the Section’s Business Torts Litigation Committee, “risk management now dictates that I direct my client to determine which employees fall within the zone of interests” protected by Title VII. Notably, the Court left significant room on the spectrum between an “acquaintance” and “close family member.” “Although the Court describes an objective standard, a clear rule would have been helpful,” McLaughlin notes.

Charla B. Stevens, Manchester, NH, cochair of the Section’s Family Law Litigation Committee, suggests attorneys focus their clients on the need to train not only their human resources staff but also mid-level managers on what could constitute unlawful discrimination or retaliation and the “importance of appropriately documenting performance.” “Good antiretaliation policies are also critical,” says Stevens. She also suggests attorneys “query whether anti-nepotism policies might be helpful in minimizing the risk.”

Keywords: litigation, third-party retaliation, Title VII, family law, EEOC

Related Resources

  • » Thompson v. N. Am. Stainless, LP, 131 S.Ct. 863 (2011).
  • » Burlington N. v. S.F.R. Co. v. White, 548 U.S. 523 (2006).

  • » Leavitt v. SW&B Const. Co., LLC, 2011 U.S. Dist. LEXIS 18815, n. 28 (D. Me. Feb. 25, 2011) (noting that Thompson holding can “apply with equal force to the ADA” and that plaintiff had “cause of action if he can establish he was retaliated against for his wife’s ADA protected activity.”).


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