On January 24, 2011, in a unanimous decision in Thompson v. North American Stainless, LP, authored by the U.S. Supreme Court’s leading conservative voice, Antonin Scalia, ruled that the fiancé of an employee who filed a sex discrimination charge against North American Stainless (“NAS” or “Company”) may bring an action for retaliation against NAS for terminating his employment three weeks after his fiancé filed the discrimination charge. In reaching that conclusion, Justice Scalia noted that it is obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.
The Supreme Court specifically declined to identify a fixed class of relationships for which third-party reprisals may be deemed potentially unlawful. It appears that the courts will consider the nature and extent of the relationship and the adverse employment action in determining whether a retaliation claim is available. At a minimum, this will make it more difficult for employers to obtain summary dismissal of third-party retaliation claims.
Employers must review their anti-discrimination and anti-harassment policies to ensure they contain sufficiently broad statements prohibiting retaliation. Further, training programs must be revised to ensure that managers and investigators are aware of the broad scope of potential retaliation claims so that they may act accordingly. Employers that have not adopted an anti-discrimination and an anti-harassment policy are encouraged to do so. Similarly, employers that are not regularly training supervisors and managers on how to handle and respond to potential discrimination and harassment claims are encouraged to develop appropriate training programs.
If you have any questions about the Supreme Court’s decision in Thompson, supra, Title VII, retaliation claims, or anti-discrimination and anti-harassment policies, please feel free to contact a member of our Labor and Employment Practice Group.