By Tommy Eden, Attorney
On Tuesday December 7, the U.S. Supreme Court heard oral arguments (http://www.supremecourt.gov/oral_arguments/argument_transcripts/09-291.pdf) in Thompson v. North Am. Stainless LP, U.S., No. 09-291 on the issue “if employees suffer retaliation because of their close relationship with a person who files a discrimination charge, can they sue under Title VII of the 1964 Civil Rights Act?” Eric Thompson was fired after his fiancée filed a sex bias charge against their mutual employer North Am. Stainless. (They now have a lovely 2-year-old daughter according the oral argument transcript). North Am. Stainless’ attorney argued that Title VII's anti-retaliation clause only applies to individuals who engage in protected activity by either opposing suspected discrimination or participating in an investigation or other charge-related proceedings. The lower courts agreed. There is currently an increasing volume of retaliation charges at the EEOC. An adverse ruling against North Am. Stainless would most likely cause that volume to rise even higher.
Common Sense Counsel: I do not believe that the United States Supreme Court would have accepted this case for review if it did not plan on making a change to the existing state of the law. The broad range of behavior that may be deemed “protected activity” under the anti-retaliation provision of Title VII of the 1964 Civil Rights Act has widened considerably over the past few years. To the degree conduct (even disruptive conduct) could reasonably be perceived as intertwined and interrelated with alleged harassment, an employer should not use that conduct as the basis for an employee discharge. See the EEOC Website for detailed guidance on the subject of unlawful retaliation http://www.eeoc.gov/laws/types/facts-retal.cfm.
Every employer in East Alabama's to do list should include: 1) adopting an effective and legally defensible policy against unlawful retaliation; 2) ensuring that your employees have received a copy of the policy and signed an acknowledgment; 3) training supervisors in unlawful retaliation; 4) removing discharge authority from front-line supervisors; 5) conducting a thorough investigation of the facts and circumstances - including allowing the employee to tell their side of the events - before making the final discharge decision; 6) conducting exit interviews where you specifically question the employee as to whether they have any unresolved claims against the company and having them acknowledge on the exit interview form their answer; and 7) following systematic steps to ensure that each of your discharge decisions are legal and defensible.
Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at firstname.lastname@example.org or 334-246-2901. Blog at www.alabamaatwork.com