Does Employee Now Mean Employee Plus Relative?

By unanimous decision the United States Supreme Court ruled on Monday, January 24, 2010 that the retaliation provision of Title VII, the federal discrimination statute which prohibits employment discrimination, protects an employer's relative from unlawful retaliatory dismissal.

In deciding Thompson v. North American Stainless, LP, the Supreme Court reversed the federal appellate court which had previously held that Title VII's retaliation provision protected only the employee who actually filed a complaint by ruling that an employee's fiancé who had been fired allegedly in response to the company's receipt of a Charge of Discrimination by their fiancée could also sue: "Thompson [the fiancé] is not an accidental victim of the retaliation - collateral damage, so to speak, of the employer's unlawful act. To the contrary, injuring him was the employer's intended means of harming Regalado [Thompson's fiancée who previously had filed a Charge of Discrimination against the company]. Hurting him was the unlawful act by which the employer punished her. In these circumstances, we think Thompson well within the zone of interests sought to be protected by Title VII. He is a person aggrieved with standing to sue."

This decision represents yet another expansion of the ability of employees (or, in this case, their relative) to sue asserting claims of retaliation. Unanswered by Monday's decision however is the question of how far the "zone of protection" extends. Rather than definitively answering that question, the unanimous Supreme Court acknowledged that it is difficult to articulate a "comprehensive set of clear rules," declined to "identify a fixed class of relationships for which third party reprisals are unlawful," and 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." Accordingly, potential retaliation claims must now be evaluated on a case-by-case basis and employers are left wondering who is protected under this ruling - only a relative or perhaps a friend or a confidant, etc.

At a minimum, until lower courts address these issues in written opinions, employers who employ more than one family member should analyze all disciplinary or dismissal decisions for potential retaliation claims which could be asserted by either family member before implementing any decision.