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Friday, February 4, 2011

Third Party Retaliation Unlawful Says U.S. Supreme Court

By: Tommy Eden, Attorney

On January 24, 2011 the U.S. Supreme Court in Thompson v. North Am. Stainless LP decided that if an employee suffers retaliation because of their close relationship with a person who files a discrimination charge that person has a Title VII retaliation claim. Eric Thompson was fired for virtually no reason 3 weeks after his fiancĂ©e Miriam Regalado had filed an EEOC charge alleging sex discrimination against their joint employer North Am. Stainless. (They now have a lovely 2-year-old daughter according the oral argument transcript). Thompson then filed a charge with the EEOC. After conciliation efforts proved unsuccessful, he sued North Am. Stainless in the United States District Court for the Eastern District of Kentucky under Title VII claiming that North Am. Stainless had fired him in order to retaliate against Regalado for filing her charge with the EEOC. North Am. Stainless’ attorney had argued that Title VII's anti-retaliation clause does not permit third party retaliation claims and only applies to individuals who engage in protected activity by either opposing suspected discrimination or participating in an investigation or other charge-related proceedings.In an 8-0 thumping of the employer, the high court held that Title VII grants Thompson a cause of action. “If the facts Thompson alleges are true, his firing by North Am. Stainless constituted unlawful retaliation. Title VII’s anti retaliation provision must be construed to cover a broad range of employer conduct.” The case was sent back to the lower court for trial.

Common Sense Counsel: EEOC Retaliation charges filed in 2010 were at a record high. 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.

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 through 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 Capell & Howard, P.C. 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 or 334-501-1540.