The Supreme Court recently struck a blow to employers and made another expansion to the scope of Title VII’s retaliation provisions. By its January 24, 2011 decision in Thompson v. North American Stainless, LP, –U.S. –, 2011 WL 197638 (2011), the court overturned a Sixth Circuit decision which had affirmed the dismissal of the retaliation claims brought by a terminated fiancé of another employee who had brought a sexual harassment charge. By its ruling, the Supreme Court held that the fiancé could bring his own suit under Title VII for the alleged retaliatory termination, even though he did not himself engage in any protected activity prior to his termination.
The Supreme Court focused the language of 42 U.S.C. 2000e-5(f), which bestows the right to bring a civil action to a “person …aggrieved.” Using a “zone of interest” test —enabling suit by any plaintiff with an “interest arguably sought to be included in the statute” – the Court construed the Title VII provision broadly, determining that the statute encompassed claims by persons harmed in retaliation for another employee’s protected activity. Id., at 5. The court rejected the argument that Title VII did not reach third-party reprisals, referring back to the lesson in Burlington, which also held that the retaliation provision is very broad.
The Court explained: “[Fiancé] falls within the zone of interests protected by Title VII. He was an employee of NAS, and Title VII’s purpose is to protect employees from their employers’ unlawful actions. Moreover, accepting the facts as alleged, [Fiancé] is not an accidental victim of the retaliation. Hurting him was the unlawful act by which NAS punished [Complaining Employee].” Id.
The Court also refused to restrict or specifically define any particular set of relationships that would fall into the “zone of interest” of Title VII’s retaliation provision, stating:
“We must also decline to identify a fixed class of relationships for which third-party reprisals are unlawful. We expect that firing a close family member will almost always meet the Burlington standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize. As we explained in Burlington, 548 U.S., at 69, 126 S.Ct. 2405, ‘the significance of any given act of retaliation will often depend upon the particular circumstances.’ Given the broad statutory text and the variety of workplace contexts in which retaliation may occur, Title VII’s antiretaliation provision is simply not reducible to a comprehensive set of clear rules. We emphasize, however, that ‘the provision’s standard for judging harm must be objective,’ so as to ‘avoi [d] the uncertainties and unfair discrepancies that can plague a judicial effort to determine a plaintiff’s unusual subjective feelings.’ Id., at 68-69, 126 S.Ct. 2405.”
Id., 4 (Emphasis added).
Because the ADA adopts the same “person … aggrieved “ provisions of 42 USC 200e-5 and the ADEA provides at 29 U.S.C. 626 that “any person aggrieved may bring a civil action…,” the Thompson decision likely will not be limited to retaliation under Title VII.