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By Bill King

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The Employee Retaliation Umbrella Just Got a Little Bigger

Employers now have a new question to ask before firing someone: “Has a person close to this employee recently filed an EEOC claim against us?”  The answer and the employer’s basis for firing this employee, plus HR documentation may determine whether or not the company will have a second EEOC complaint.

In a recent U.S. Supreme Court decision, an employee who was fired after his fiance filed a complaint against the employer was deemed to have “standing” (may bring a viable claim) to sue the employer.  Title VII of the Civil Rights Act protects employees from retaliation or other discrimination because that employee opposes an unlawful practice or otherwise reports or assists in an investigation of such practice. However, that protection did not extend to third parties, such as one related to the “whistle-blowing” employee, until now.

In Thompson v. North American Stainless, LP (No. 09-291, 1/24/11), Eric Thompson was engaged to Miriam Regalado.  Both worked for North American Stainless (“NAS”) and it was well known throughout the company that the two were engaged to be married.  Regalado filed a claim with the Equal Employment Opportunity Commission (“EEOC”) alleging gender discrimination.  Three weeks later, Thompson -not Regalado- was fired.  So, Thompson filed his own claim with the EEOC claiming retaliation based on Regalado’s claim.  The EEOC agreed with Thompson and ruled in his favor.  Naturally, NAS appealed. At trial, NAS argued that, since Thompson did not have his own discrimination claim, he did not fall under the umbrella of the Title VII.  The trial court agreed, stating that Thompson did not fall under the protected class of citizens Congress intended to protect under Section 704(a) of Title VII.  When Thompson appealed that ruling, the appellate court affirmed the trial court stating that Thompson did not engage in any protected activity upon which he could base his retaliation claim (i.e., Regalado’s gender discrimination claim was not his).

But the Supreme Court stepped in and stated that Thompson, as Regalado’s fiance, fell within Regalado’s “protected zone of interests” sought to be protected by the law at issue (Title VII).  In other words, he had “standing” to sue NAS.  The Court reasoned that  Thompson was not “collateral damage,” but rather, that firing Thompson “was a means of harming Regalado. Hurting him was the unlawful act by which the employer punished her… He is a person aggrieved with standing to sue.”

"I promise to love, honor, and cherish you...oh and to put you in my zone of protected interests."

Accordingly, the Supreme Court has now broadened the definition of potential claimants in a retaliation claim to include a close friend, family member, or fiance — those who might be dissuaded by the employer from initiating or supporting a discrimination charge.

What to do?

As an employer, you should already have a handbook that includes protocols for documenting employee performance or conduct problems so that you have a paper trail justifying termination, even in an at-will state like California.  NAS may have been correct to terminate Thompson and they, in fact, alleged his performance was the basis for such firing.  However, the evidence apparently was lacking to support this claim and, by all appearances, the firing was a retaliation against Regalado, a federal no-no. NAS learned the hard way that retaliation is never the way to go.

Remember, even if you believe you have every good reason to terminate an employee, it’s probably a good idea to consult your employee handbook and your attorney…and maybe the employee’s Facebook list of friends and fiances…


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