Race Discrimination Victim Prevails Before the Eleventh Circuit

In an unusual but welcome move, the U.S. Court of Appeals for the Eleventh Circuit in Ash v. Tyson Foods has reversed its own decision in a race discrimination case. The court had overturned a jury verdict against Tyson Foods related to employment bias at a plant in Gadsden, Alabama. A brief filed by a retired Alabama federal judge and a group of civil rights leaders urged the court to reconsider its ruling. More than a year after its last ruling, the court reversed itself, albeit grudgingly. The New York Times’ coverage on the decision can be viewed here.

This case has made its way through the appellate courts several times over the years. Two black employees at the Tyson plant, Anthony Ash and John Hithon, alleged discrimination based on race when they were passed over for promotion in favor of two white employees. The plaintiffs further alleged that their manager created a hostile work environment by frequently referring to adult black male employees as “boy.” They filed suit based on, among other causes of action, Title VII of the Civil Rights Act of 1964. When the case went to trial in 2002, the jury awarded the plaintiffs over $1.4 million in compensatory and punitive damages.

Following the jury verdict, the employer first appealed the case to the Eleventh Circuit. A three-judge panel of the Eleventh Circuit unanimously affirmed in part and reversed in part, finding that the evidence presented at trial was not sufficient to establish unlawful discrimination or to support the damage award. It held that the manager’s use of the word “boy,” in the absence of an adjective such as “black” or “white” is not in and of itself evidence of discriminatory intent. In 2006, the Supreme Court unanimously vacated the Eleventh Circuit’s ruling and remanded the case, rebuking the court for its finding regarding the manager’s language. The Supreme Court’s per curiam opinion noted that the circuit court should have considered factors like “context, inflection, tone of voice, local custom, and historical usage.”

At this point, Hithon pursed the case on his own, without Ash. When the Eleventh Circuit heard the case again, this time in 2010, it reached a conclusion similar to its earlier finding. In a 2-1 ruling, the court held that the manager’s use of the word “boy” was “conversational” and “nonracial in context,” and it once again mostly reversed the trial court’s verdict. Once again, the Eleventh Circuit’s controversial ruling caught the attention of the New York Times in this article.

The Eleventh Circuit’s new ruling once again overlooked evidence beyond the words themselves. Testimony at trial by the plaintiffs and other witnesses established the connotation that the word “boy” evinces. Ash, for instance, told the jury that “being in the South, and everybody know [sic] being in the South, a white man says ‘boy’ to a black man, that’s an offensive word.”

Gender Discrimination Suits Continue Against Wal-Mart

Betty Dukes worked for years at the Wal-Mart in Pittsburg, California, hoping for advancement. She found herself frustrated at the lack of promotion and poor treatment by managers. She believed their denial of opportunities to her was based on both her gender and her race. When her complaints to the corporation’s chain of command went unheard, she sought legal help. She became the face of the largest gender discrimination class action suit in United States history, Dukes v. Wal-Mart, first filed in a San Francisco federal court in 2001 and eventually including female Wal-Mart employees from all over the country. In 2010, the Ninth Circuit Court of Appeals upheld a district judge’s order allowing the case to proceed as a class action with nearly a million class members. The lawsuit has not gone well for the plaintiffs since then.

Wal-Mart appealed the Ninth Circuit’s ruling, and it went to the United States Supreme Court. On June 20, 2011,the Supreme Court overturned the Ninth Circuit, denying the plaintiffs the right to go forward as a class. Justice Antonin Scalia, writing for the majority, held that the plaintiffs had not demonstrated that Wal-Mart had a “general policy of discrimination” that impacted all class members. In denying class certification, the Court noted that the plaintiffs worked in different stores in different regions and that they suffered different types of discrimination under different managers for different reasons.

The employees and their advocates, however, have not given up. New efforts to hold Wal-Mart accountable for alleged discrimination target smaller areas, rather than the entire country. New suits have been filed in California and Texas on behalf of plaintiffs from the original suit, and more regional suits may follow. These lawsuits tend to focus on the corporation’s stores within a single state, thus narrowing the scope of the alleged discrimination.

Pepsi Settles Federal Race Discrimination Claim

Pepsi Beverages reached a settlement agreement with the Equal Employment Opportunity Commission (EEOC), in which it will pay $3.13 million and modify its training and hiring processes based on allegations of racial discrimination. An investigation by the EEOC found evidence that Pepsi’s use of criminal background checks during the hiring process had an adverse and disproportionate impact on black job applicants. Under Pepsi’s policy, job applicants who had been arrested pending prosecution were refused job offers, even if they had not been convicted. In addition, Pepsi’s policy denied employment to job applicants arrested or convicted of particular minor offenses. The EEOC found that Pepsi’s policy disproportionately impacted more than three hundred individuals.

This case demonstrates how a policy that is not specifically intended to discriminate may still violate anti-discrimination laws. Disparate impact gives rise to liability where a facially neutral employment practice or policy, that serves no purpose in promoting a legitimate business interest, disproportionately affects employees in a certain protected class. Under this framework, proof of discriminatory animus is unnecessary.

The Supreme Court’s ruling in Griggs v. Duke Power Co., which was decided just two years after race discrimination in the workplace became illegal, is a prime example. There, the company required job applicants to obtain a high school education or to pass a standardized general intelligence test as a condition of employment. At the time, these requirements disproportionately affected black applicants. In considering whether this policy violated Title VII, the Court stated “the consequence would appear to be directly traceable to race,” noting that blacks “have long received inferior education in segregated schools.” Finally, the Court found that “neither the high school completion requirement nor the general intelligence test is shown to bear a demonstrable relationship to successful performance of the jobs for which it was used.” For these reasons, the policy violated Title VII.

Similar to Title VII, the Massachusetts Fair Employment Practices Act (M.G.L. c. 151B) recognizes disparate impact claims. In School Committee of Braintree v. MCAD, for instance, a female teacher brought a sex discrimination claim under the disparate impact framework. There, the school relied on a policy and denied the plaintiff the ability to use her accumulated sick time during her maternity leave. In sharp contrast, the school had allowed the use of accumulated sick time for reasons other than pregnancy such as Peace Corps work and military service. The Massachusetts Commission Against Discrimination found the school’s policy had a disparate impact on women. The Supreme Judicial Court agreed:

Unlike leaves of other kinds, maternity leave possesses an essential character of being medically necessary. During several weeks of maternity leave a woman, by necessity, is physically disabled and incapable of performing her job. No comparable situation exists with respect to men.

The Boston race discrimination lawyers at The Law Office of Alan H. Crede, P.C. specialize in employment law and solely represent employees. If you are a victim of race discrimination, please contact The Law Office of Alan H. Crede, P.C. through our website or at (617)973-6434 to schedule a confidential consultation.

More Race Discrimination Blog Posts by The Law Office of Alan H. Crede, P.C.:

New York Fish Market Settles Race Discrimination and Sexual Harassment Lawsuit, Boston Employment Lawyer Blog (December 28, 2011)
Race Discrimination Claim Filed Against Texas Company Alleging Rampant Use Of Racial Slurs, Boston Employment Lawyer Blog (February 7, 2011)
Race Discrimination and Sexual Harassment Lawsuit Filed Against NASCAR, Boston Employment Lawyer Blog (June 26, 2008)

New York Fish Market Settles Race Discrimination and Sexual Harassment Lawsuit

The Equal Employment Opportunity Commission (EEOC) recently settled a discrimination suit against New York-based fish wholesaler M. Slavin & Sons, Inc. for $900,000. The EEOC filed suit in December 2009 based on complaints by more than thirty employees of physical and verbal sexual harassment. According to the EEOC’s 2009 Press Release, some of M. Slavin’s owners and managers subjected certain non-Caucasian male employees, mostly African-American, to ongoing harassment including groping, offensive sexual comments, and racial slurs.

Some employees left the company because of the harassment, and the individual who first reported the harassment further alleges that he faced retaliation from M. Slavin managers. He claims that managers instructed other employees not to associate with him and threatened his life.

The EEOC’s lawsuit, filed in U.S. District Court for the Eastern District of New York, claimed that M. Slavin violated Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment based on race, color, sex, and other protected categories. Discrimination based on sex includes sexual harassment, and it encompasses actions against any gender. The law also protects people who seek to defend their rights from retaliation by their employer, and it allows employees to make claims against employers who create a hostile work environment based on race, sex, and other protected categories.

On December 15, 2011, the EEOC announced that M. Slavin had agreed to pay $900,000 to settle the lawsuit, in addition to providing other relief. As part of the settlement, the company is required to revise its policies on sexual harassment, discrimination, and retaliation, and submit to monitoring by the EEOC for a period of five years. The Company is also required to retain an independent consultant to handle discrimination complaints and must provide one-on-one training for the owners and managers who committed the worst acts of harassment. Finally, the Company is required to provide annual anti-discrimination training for all of its owners and managers, publicize the resolution of the lawsuit to all employees at the work site, and notify the EEOC of any and all new discrimination complaints.

Disability Discrimination Case Brought Against Kohl’s

A lawsuit filed in federal court in Portland, Maine alleges that Kohl’s Department Stores unlawfully discriminated against an employee based on her disability. The Equal Employment Opportunity Commission (EEOC) filed suit against the Wisconsin-based national retail store chain on behalf of Pamela Manning, who suffers from Type 1 diabetes. Manning worked at Kohl’s Westbrook, Maine store location. Because of her condition, she requires regular insulin injections. Beginning in January 2010, her complaint alleges, Kohl’s switched her full-time work schedule from a consistent daily schedule to an irregular one. This interfered with her daily routine of medical care. She presented her employer with a note from her doctor requesting that she have a regular work schedule, but Kohl’s refused to change it. She eventually developed health complications due to her inability to routinely administer her medications, and she had to quit her job with Kohl’s.

The EEOC filed suit in August 2011, alleging violations of the Americans With Disabilities Act of 1990 (ADA). It first attempted to settle the matter between Manning and Kohl’s through a conciliation process, which was unsuccessful. The lawsuit seeks monetary compensation for Manning and a revision of Kohl’s policies relating to disability discrimination. The EEOC’s Boston office is handling the litigation. They argue that it would have cost Kohl’s nothing to maintain a set schedule for Manning, but the cost of failing to do so was potentially catastrophic for Manning.

Kohl’s filed a response on October 24 denying liability and disability discrimination. According to a report in the American Journal, Kohl’s acknowledged changing Manning’s schedule in January 2010 but denied allegations regarding its knowledge of Manning’s diabetes. Kohl’s also admitted to receiving the note from Manning’s doctor but denies refusing to accommodate Manning’s needs. It claims that it makes “good faith efforts” to accommodate its employees’ scheduling needs. The Journal article does not mention how Kohl’s reconciles these seemingly contradictory claims.

The EEOC is a federal agency within the U.S. Department of Labor. Its purpose is to investigate allegations of employment discrimination and enforce federal anti-discrimination laws like the ADA and the Civil Rights Act of 1964. When an employee makes a complaint, the EEOC will investigate and make a finding or recommendation as to whether it believes unlawful discrimination occurred. Occasionally, it will file a lawsuit directly on behalf of an employee. More often, it will issue a “right to sue” letter that gives the employee a window of time to file a court claim with the help of an employment discrimination lawyer.

The ADA prohibits disability discrimination by employers, which can include an employer failing to make reasonable accommodations for an employee’s needs. By allegedly failing to adjust Manning’s schedule to allow for her particular medical needs, the lawsuit is claiming that Kohl’s discriminated against Manning and therefore violated the ADA.

The Boston employment discrimination attorneys at The Law Office of Alan H. Crede, P.C. specialize in employment law and exclusively represent employees. If you are a victim of disability discrimination, please contact The Law Office of Alan H. Crede, P.C. through our website or at (617)973-6434 to schedule a confidential consultation.

More Disability Discrimination Blog Posts by The Law Office of Alan H. Crede, P.C.:

Americans with Disabilities Act Violations Alleged in EEOC Lawsuit Against New Hampshire Company, Boston Employment Lawyer Blog (October 25, 2011)
ADA Amendments Act Provides Employees with Greater Protection, Boston Employment Lawyer Blog (December 15, 2009)
Handicap Discrimination Claim Succeeds Against Wal-Mart, Boston Employment Lawyer Blog (August 12, 2008)

A Brief History of Sexual Harassment

Sexual harassment has been at the forefront of the news in recent weeks thanks to two major stories. One involves the allegations of sexual harassment against Republican presidential candidate Herman Cain. The other is the twentieth anniversary this year of the sexual harassment allegations against Supreme Court Justice Clarence Thomas during his confirmation process. The Christian Science Monitor recently published an article examining the history of sexual harassment as both a legal and social concept over the past 30 to 40 years, identifying six high profile cases that have raised public awareness of the issue. While sexual harassment is undoubtedly still a widespread problem across the country (and the world), it is worthwhile to occasionally review how far we have come.

1. Meritor Savings Bank v. Vinson: Originally, quid pro quo was the only type of legally actionable sexual harassment. This type of sexual harassment occurs when an employee is required to submit to a supervisor’s sexual advances as a condition of employment (e.g., “sleep with me or you’re fired”). The Supreme Court’s 1986 ruling in Meritor Savings Bank v. Vinson expanded the definition of sexual harassment to include hostile work environment:

In sum, we hold that a claim of “hostile environment” sex discrimination is actionable under Title VII … and that the District Court did not err in admitting testimony about respondent’s sexually provocative speech and dress.

For more information on the differences between quid pro quo and hostile work environment sexual harassment, please visit our website here.

2. Jensen v. Eveleth Tavonite Co.: The first class-action sexual harassment lawsuit was filed in 1988 on behalf of Minnesota mining company employee Lois Jensen, who described a pattern of harassment and abuse beginning when she went to work there in 1975. The lawsuit continued until a settlement was reached in 1998. Jensen’s story was the subject of the 2005 Charlize Theron film “North Country”.

3. Clarence Thomas and Anita Hill: While Clarence Thomas awaited confirmation to the U.S. Supreme Court in 1991, Hill went public with allegations of sexually suggestive remarks when she worked as his assistant years earlier. The Supreme Court confirmed Thomas, but the controversy served to make the whole country aware of the topic of sexual harassment, sparking a dialogue on what is and is not appropriate in the workplace.

4. General Larry Smith and Lieutenant General Claudia Kennedy: In 1999, Lt. Gen. Kennedy was the highest-ranking female officer in the Army and was nearing retirement. When she learned that General Smith was being considered for an inspector general position, which would involve investigating sexual harassment claims, she went public with allegations that he had touched her in an inappropriate and unwanted manner in 1996. An inquiry found that Smith had behaved inappropriately and his nomination was withdrawn.

5. Senator Bob Packwood: The Oregon senator resigned in 1995 when at least 29 women, including aides, interns, and campaign workers, came forward with allegations of sexual harassment and even possible assault. After several years of scrutiny and calls for ethics investigations by fellow senators, the Senate Ethics Committee recommended his expulsion from the Senate.

6. President Bill Clinton and Paula Jones: Jones, a former Arkansas state employee, filed suit against then-President Clinton in 1994, alleging incidents of harassment and inappropriate behavior. Although a judge dismissed the suit for lack of evidence of damages, the case brought the Monica Lewinski scandal to light and led to the president’s impeachment. He settled with Jones in 1998 and paid her $850,000.

One key case not mentioned in the article is Robinson v. Jacksonville Shipyard, which established that nude pin-ups in the workplace constitute sexual harassment, even if not directly targeted at the employee who found this offensive.

The Boston sexual harassment attorneys at The Law Office of Alan H. Crede, P.C. specialize in employment law and solely represent employees. If you are a victim of sexual harassment, please contact The Law Office of Alan H. Crede, P.C. through our website or at (617)973-6434 to schedule a confidential consultation.

More Sexual Harassment Blog Posts byThe Law Office of Alan H. Crede, P.C.:

Sexual Harassment Disproportionately Affects Restaurant Workers, Boston Employment Lawyer Blog (November 14, 2011)
Sexual Harassment Claims Against Herman Cain, Boston Employment Lawyer Blog (November 3, 2011)
Sexual Harassment Claims in Federal Court: Overcoming the Farragher/Ellerth Defense, Boston Employment Lawyer Blog (October 5, 2008)

Americans with Disabilities Act Violations Alleged in EEOC Lawsuit Against New Hampshire Company

Discrimination by employers because of an employee’s disability or health condition is a serious problem for American workers. The Equal Employment Opportunity Commission (EEOC), a federal agency that investigates discrimination claims, has filed suit against a Nashua, New Hampshire company, alleging that it fired an employee because she has a heart condition in violation of the Americans with Disabilities Act (ADA).

The lawsuit, filed in a federal court in Concord, New Hampshire, alleges that Windmill International, Inc., a defense contractor, terminated employee Nancy Hajjar, shortly after she gave notice that she would need time off for a surgical procedure related to a heart condition and that she may require heart surgery as well. The EEOC claims that the company terminated her because of “an actual or perceived impairment of her circulatory or cardiovascular functions.” Windmill claims that it fired Ms. Hajjar because of job performance problems, but the EEOC alleges that the company did not follow the same progressive discipline procedures afforded to other employees, concluding that the company’s explanation is false. The EEOC’s Press Release can be viewed here, EEOC Sues Windmill International for Disability Discrimination.

The ADA, which became effective in 1992 and was amended in 2009, protects employees suffering from disabilities from certain types of discrimination in the workplace. Employers with 15 or more employees must provide equal opportunity to disabled employees for all employment opportunities available to other employees. The law prohibits discrimination in hiring, firing, promotions, pay, and terms and conditions of employment. The same holds true under the Massachusetts Fair Employment Practices Act (M.G.L. c. 151B), which also prohibits handicap discrimination in the workplace and which applies to employers with 6 or more employees.

The EEOC is an independent law enforcement agency in the executive branch of the federal government. The agency was created in 1965, after passage of the Civil Rights Act of 1964. It investigates claims of discrimination based on certain protected categories including race, gender, religion, age, and disability. It has authority to bring suit against employers that it suspects violated anti-discrimination statutes. People who believe they are the victims of unlawful discrimination must file a complaint with the EEOC, which will investigate the claim. A prospective plaintiff, before filing a lawsuit, must receive a “right-to-sue” letter from the EEOC when it concludes its review of the case. To learn more about disability discrimination and your rights, the following resources may be helpful:

Handicap Discrimination Overview, The Law Office of Alan H. Crede, P.C.
A Guide to Disability Rights Laws, Civil Rights Division, U.S. Department of Justice
Disability Resources, Americans with Disabilities Act

According to an article by the New Hampshire Business Review entitled, EEOC charges Nashua firm in disability case, approximately 25% of the 100,000 complaints that the EEOC received in fiscal year 2010 involved disability discrimination. According to the Business Review’s research, Ms. Hajjar’s case may be the first disability-based claim filed by the EEOC in New Hampshire in a decade.

The Boston employment discrimination attorneys at The Law Office of Alan H. Crede, P.C. represent people who are the victims of workplace discrimination based on a handicap or disability. To schedule a confidential consultation to discuss your case, contact the Firm through our website or at (617)973-6434.

More Handicap Discrimination Blog Posts by The Law Office of Alan H. Crede, P.C.:
ADA Amendments Act Provides Employees with Greater Protection, Boston Employment Lawyer Blog (December 15, 2009)
Handicap Discrimination Claim Succeeds Against Wal-Mart, Boston Employment Lawyer Blog (August 12, 2008)
Disability Discrimination Suit Against Wal-Mart Settles for $250,000, Boston Employment Lawyer Blog (July 13, 2008)

Retaliation Verdict Upheld Where Employee Was Fired For Using Company Records To Prove Discrimination Claim

Based on a recent decision by the New Jersey Supreme Court, an employee engages in protected activity under the New Jersey Law Against Discrimination where she or he copies and takes company documents for the purpose of aiding the prosecution of a discrimination claim.

In Quinlan v. Curtiss-Wright Corporation, the plaintiff-employee, Joyce Quinlan, was an experienced human resources professional who had joined the defendant-employer, Curtiss-Wright Corporation, in 1980. By 1999, she had become the Executive Director of Human Resources. In 2003, the employer re-organized its HR department and, in doing so, promoted a male employee, Kenneth Lewis, with allegedly less experience to the position of Vice President. As a result, the plaintiff-employee became this particular male employee’s subordinate.

The plaintiff believed that she had been passed over for the Vice President position because she is a woman. At trial, for instance, Quinlan presented evidence that few women held senior managerial positions within the company; that women (including Quinlan herself) were commonly excluded from certain company events, even when the discussions related to the HR department; and that the CEO often golfed with Lewis.

Quinlan provided her attorneys with more than 1,800 pages of company documents, which she believed bolstered her case. In November 2003, counsel filed a complaint on plaintiff’s behalf alleging, among other claims, gender discrimination. Plaintiff’s counsel later produced to opposing counsel the company documents his client had assembled.

Several weeks after making this production, the plaintiff’s attorneys deposed Lewis and, during the course of that deposition, questioned him about his most recent performance appraisal, which allegedly rated him as needing improvement in several areas. Lewis claimed that he had never before seen the appraisal. Following this deposition, the company terminated Quinlan for allegedly continuing to copy confidential information.

In charging the jury, the trial court noted that there was a significant difference between the taking of the document and its use at the deposition:

[W]hile Joyce Quinlan’s conduct in copying and removing copies of documents is not protected and is conduct for which she could have been justifiably terminated, the conduct of her attorneys in using those documents in the process of prosecuting this lawsuit is protected activity and could not properly have been a determinative factor in terminating her. In other words, if you find that a determinative factor in Curtiss-Wright’s decision to terminate Joyce Quinlan was her attorneys’ use of any of the documents, including but not limited to [Mr. Lewis’s performance appraisal], such a finding would be the basis of finding for Joyce Quinlan. On the other hand, if the real reason for her termination was her copying and removing the documents, including but not limited to [the performance appraisal], such a motive by Curtiss-Wright would not be actionable.

The jury ultimately found for the plaintiff-employee, awarding her approximately $4.2 million in back pay and front pay economic damages for her retaliation claim. The jury also found, by clear and convincing evidence, that the employer had intentionally engaged in unlawful conduct and, as a result, awarded approximately $4.5 million in punitive damages.

The Appellate Division found that the trial court had erred in its jury instruction and vacated the retaliation verdict. The New Jersey Supreme Court disagreed with the Appellate Division and reinstated the retaliation verdict. In so doing, the Court adopted a flexible, totality of the circumstances approach to decide whether an employee is privileged to take or to use documents belonging to the employer. The Court set forth seven factors:

1.How the employee obtained the document
2.With whom the employee shared the document
3.The nature and content of the document
4.Whether the taking of the document violated a company policy that is routinely enforced
5.The relevance of the document to the employee’s claim vs. whether its disclosure was unduly disruptive to the employer
6.The relevance of the document to the employee’s claim vs. whether the document was likely to be destroyed or lost
7.The broad remedial purpose of anti-discrimination laws and how permitting or precluding the use of the document will affect the legitimate rights of both employers and employees

Overall, given the nuances in cases like this, employees are well-advised to first meet with an attorney before deciding to take company documents.

Race Discrimination Claim Filed Against Texas Company Alleging Rampant Use Of Racial Slurs

Race discrimination claims continue to grab headlines. In its article entitled Industrial Services Firm Faces Bias Suit, the Wall Street Journal recently reported that “[n]early 250 workers sued Turner Industries Group of Baton Rouge on Sunday, alleging racial discrimination in hiring, pay, promotions and on-the-job treatment.”

The allegations in the complaint, which numbers more than 300 pages, are especially egregious:

Robinson and his similarly situated Black co-workers have been and continue to be subjected to racially offensive graffiti displayed at Turner job sites. For example, he has seen “Nigger hang from a tree,” and “fuck you niggers, go back to Africa.” He has also seen a noose and several confederate flags hung in the bays at Turner.

Jeffery and his similarly situated Black co-workers have been subjected to racial graffiti and depictions throughout Turner facilities and job sites. The bathrooms were constantly covered in offensive comments such as, “Niggers don’t belong here,” and he has seen drawings of White people wearing KKK hats.

Jones and his similarly situated Black co-workers have been subjected to a racially hostile atmosphere at Turner’s facilities. For example, White workers would leave notes on his truck calling him “nigger” and saying, “I know you sell drugs you nigger fucker.” Jones reported these notes to management, but Turner did not do anything to stop the notes.

The Equal Employment Opportunity Commission investigated similar complaints of racial harassment at Turner Industries. In early 2010, the EEOC found that numerous instances of racial harassment occurred at the company’s Paris, Texas plant — which included the use of racial epithets and symbols of discrimination. The Dallas Morning News reported the EEOC’s findings in its article entitled,
EEOC: Black workers harassed at pipe factory in East Texas.

If you’re the victim of race discrimination and harassment, its important to act quickly to preserve your rights and hopefully put an end to the hostile work environment. Please contact us to learn more about this process and about our Firm’s special focus in this area.

Supreme Court Rules That Title VII Allows Third-Party Retaliation Claims

Employees who are victims of third-party retaliation clearly state a claim under Title VII of the Civil Rights Act of 1964.

In Thompson v. North American Stainless, the United States Supreme Court held that the plaintiff-employee fell within the “zone of interest” to bring a claim under Title VII. There, Eric Thompson worked at the same employer of his then-fiancée (now wife), Miriam Regalado. Unfortunately, the employer fired Mr. Thompson after Ms. Regalado filed a sex discrimination claim with the Equal Employment Opportunity Commission. Mr. Thompson then filed his own complaint with the EEOC for retaliation under Title VII.

In its opinion, District Court for the Eastern District of Kentucky granted summary judgment for the employer on the basis that Title VII does not contemplate third-party retaliation claims. In doing so, the court stated:

The Court recognizes that retaliating against a spouse or close associate of an employee will deter the employee from engaging in protected activity just as much as if the employee were himself retaliated against. But, the Court also finds persuasive the reasoning that Title VII already offers broad protection in such situations by prohibiting employers from retaliating against employees who oppose unlawful employment actions or who participate in any manner in a proceeding under Title VII.

In its opinion, the Sixth Circuit (en banc) affirmed, reasoning:

Even under the most generous definition of “oppose” recognized by the Court in Crawford—”to be hostile or adverse to, as in opinion”—a plaintiff must engage in a discrete, identifiable, and purposive act of opposition to discrimination. Thus, such action is a critical component of a prima facie case of retaliation under Title VII. The plain text simply cannot be read to encompass “piggyback” protection of employees like Thompson who, by his own admission, did not engage in protected activity, but who is merely associated with another employee who did oppose an alleged unlawful employment practice.

The Supreme Court reversed and, in doing so, rejected the employer’s argument that Title VII claims should be limited to the person who was the subject of unlawful retaliation:

[W]e conclude that Thompson falls within the zone of interests protected by Title VII. Thompson was an employee of NAS, and the purpose of Title VII is to protect employees from their employers’ unlawful actions. Moreover, accepting the facts as alleged, Thompson 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. Hurting him was the unlawful act by which the employer punished her. In those 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.

The case was successfully argued by Professor Eric Schnapper of the University of Washington School of Law. Thanks to The Oyez Project, the oral argument can be heard here.