A company may not retaliate against an employee by firing a third party, the U.S. Supreme Court ruled late last month, giving employees more backing to sue for retaliation.
In the case Thompson v. North American Stainless, justices ruled unanimously that third parties to discrimination actions are protected from retaliation by their employers by Title VII—the Civil Rights Act of 1964, amended. Title VII prohibits an employer from discriminating against an employee based on the employee's race, color, national origin, gender, or religion.
Until 2003, both petitioner Eric Thompson and his fiancée Miriam Regalado were employees of North American Stainless (NAS), according to court papers. In February 2003, the Equal Employment Opportunity Commission notified NAS that Ms. Regalado had filed a charge against her supervisor alleging sexual discrimination. Three weeks later, NAS fired Mr. Thompson.
Mr. Thompson then filed a charge with the EEOC, the papers said. After conciliation efforts proved unsuccessful, he sued NAS in the United States District Court for the Eastern District of Kentucky under Title VII.
Gerald L. Maatman Jr., a partner and co-chair of the class-action defense group at Seyfarth Shaw in Chicago, wrote in an e-mail that Thompson underscores the Supreme Court's commitment to interpreting Title VII anti-retaliation protections expansively in favor of workers. The ruling, he said, reflects the Supreme Court's position that the process of anti-discrimination complaint resolution should be employee-friendly.
Because the test of Title VII anti-retaliation protection formulated in Thompson is fact-and-circumstances driven, he noted, it is a "door opening" ruling for workers, opening "the courthouse doors to more claims" and making it "more difficult for employers to dispose of such claims."
The effect of the ruling, Mr. Maatman said, is to raise the stakes for human resources professionals and corporate counsel involved in personnel situations from which claims of retaliation may grow.
"By adopting a 'zone of interests' test to determine [when] the anti-retaliation provision 'kicks in,' operating within the 'zone of interests' is now a challenge fraught with risk for companies," he said.
Jack McCalmon, president, The McCalmon Group in Tulsa, Okla., told NU, "No one is surprised," adding that it was a "reprehensible situation" and that a "reasonable and ethical decision" was made.
He noted, however, that "when you apply it to how things really work," the ruling may present problems for employers over the long term.
While tagged the most conservative Supreme Court in recent history, he observed in an e-mail, "the Roberts Court continues to expand retaliation liability against employers and weaken the at-will rule—a rule that has allowed American employers to stay competitive for over a century."
The Roberts retaliation decisions, he said, continue to undermine and devalue "one of the most important tools of the American free enterprise system—the at-will rule."
"The at-will rule permits employees to leave their employer at any time for any reason so long as the reason is not illegal. This part of the rule has remained unchanged for over 50 years."
The other part of the at-will rule, he noted, is that employers "may terminate an employee at any time and for any reason so long as the reason is not illegal." This part of the at-will rule, he said, has been "under siege as lawmakers and the Supreme Court have expanded what is considered an 'illegal reason' for terminating an employee for the last 40 years."
Thompson and other retaliation decisions weaken the at-will rule by adding to the number of "bubble employees," Mr. McCalmon said. While the EEOC and the courts seem to "believe that retaliation is rampant by American employers, it is my opinion and experience that most American employers go out of their way not to retaliate, creating the 'bubble employee' class."
"Bubble employees," he explained, "is a term I use to refer to employees who are still employed but are treated better than other employees because they have filed a claim sometime in the past against their employer."
The "bubble," he explained, is the fear of litigation that protects these employees from termination or other forms of discipline, or allows "bubble employees" to receive more opportunity than other employees, even if the bubble employee's past complaint was unsubstantiated. He noted that an employee does not have to prove a complaint to be protected from retaliation for filing or witnessing a complaint.
In fact, employer fear of retaliation litigation is legitimate, he said. Since the Roberts Court decision of Burlington N. & S. F. R. Co. v. White in 2006, retaliation charges have risen 36 percent, from 26,663 to 36,258. In 2010, he said, retaliation charges became the number one charge to the EEOC, surpassing for the first time race discrimination charges.
"In my experience," Mr. McCalmon said, "the numbers do not lie. 'Bubble employees' are more likely to bring questionable claims of retaliation for normal and legal actions such as discipline, layoffs, denial of promotions and terminations."
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