News
February 3, 2011
Supreme Court Ruling on January 31st in the Legal Area of
Labor and Employment
by Kent Sezer
On January 31, 2011, the Supreme Court ruled (8-0) that a man who alleged that he was fired because his fiancée (and co-worker) filed a charge of discrimination against their common employer could proceed with his discrimination claim against the employer, event though he had not personally engaged in protected activity, and therefore the discharge was not in "retaliation" for anything he, personally, had done. The Court reasoned that the discharge was an act of retaliation against the woman, and that the man had standing to proceed with the action in his own name because the act of retaliation against her had harmed him.
The Court refused to articulate exactly how far this concept of third-party reprisals extends, but allowed that where an employer takes some action less than discharge against someone who is a mere acquaintance of someone who filed a charge, the acquaintance will almost never have standing to proceed with a retaliation claim. On the other hand, firing someone because of the protected actions of a close family member will almost always be actionable. Thus, even in a case where an employee has not filed a charge of discrimination or otherwise engaged in protected activity and has no claim based on race, sex, religion, national origin, age, disability, sexual orientation or any other protected characteristics, the employee may still have viable cause of action based on a third-party reprisal theory.
Recently, the Supreme Court has issued a number of decisions interpreting the substantive prohibitions of civil rights statutes narrowly and the anti-retaliation provisions of those same statutes broadly. Perhaps based on this trend, the number of charges filed with the EEOC in 2010 that claimed retaliation (30,948) was greater than the number of charges alleging any other single category of discrimination.
The lesson for employers is clear. Even where a charge of discrimination is without merit, it can be the basis for a subsequent, valid claim of retaliation. The employer cannot relax its guard because a substantive claim of discrimination is dismissed.