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United States Supreme Court Expands Anti-retaliation Protections

Whoever thinks that Supreme Court justices vote based solely on political loyalties should read the Court’s decision of Eric Thompson v. North American Stainless, LP, 131 S.Ct. 863 (2011).  The usually avowedly conservative Justice Antonin Scalia authored the U.S. Supreme Court’s unanimous decision (Justice Elena Kagan did not participate), which, widened, perhaps vastly, Title VII’s anti-retaliation protections by expanding on the 2006 pro-employee decision of Burlington N. & S.F.R. Co. v. White, 548 U.S. 53, 126 S.Ct. 2405 (2006)

Legal Background

Title VII of the Civil Rights Act of 1964 makes it illegal to discriminate in employment because of race, color, religion, sex, or national origin.  It also makes it illegal to retaliate against any employee “because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.”  See 42 U.S.C. §2000e-3(a)

While there is no doubt that refusing to hire or terminating an individual because he or she is a member of a protected class or opposed discriminatory practices, the Burlington Northern case clarified that an employer’s illegal conduct could include any actions that “well might have dissuaded a reasonable worker from making or supporting a [discrimination] charge.”  Burlington N., 548 U.S. at 68.  For example, while a shift reassignment may be only undesirable for many employees, it may be devastating to a single mother with school-age children.

Eric Thompson, Miriam Regalado, and North American Stainless

Eric Thompson and Miriam Regalado were both employees at North American Stainless, LP.  They also were engaged to be married.  When Ms. Regalado filed a sex discrimination charge against American Stainless with the U.S. Equal Employment Opportunity Commission, American Stainless responded by firing Mr. Thompson. He then filed his own retaliation charge with the EEOC – alleging that North American Stainless fired him to retaliate against Regalado for filing her charge.

The district court dismissed his lawsuit, and 6th Circuit Court of Appeals affirmed, on the basis that Thompson was not entitled to sue under Title VII’s anti-retaliation provisions because he did not make a charge, testify, assist, or otherwise participate in any way to oppose North American Stainless’ allegedly discriminatory practices.


Despite the language that makes it illegal to retaliate against an employee because “he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII],” the Supreme Court seemed to have no reservations in finding that North American Stainless’ firing of Thompson was illegal.  It opened its decision, saying that “we have little difficulty concluding that if the facts alleged by Thompson are true, then NAS’s firing of Thompson violated Title VII.”  Thompson, 131 S.Ct. at 867. 

Justice Scalia referred back to the Burlington Northern decision for the proposition that “[Title VII’s] antiretaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment” and includes any actions that “might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”  Burlington N., 548 U.S. at 64.  He then noted that the Justices “think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.”  Thompson, 131 S.Ct. at 868. 

North American Stainless argued that prohibiting reprisals against third-parties will cause “line-drawing problems” for employers trying to navigate through their requirements under Title VII.  The Court acknowledged the risk that employers will face by terminating employees “who happen[] to have a connection” to an employee who has, for example, filed a discrimination charge.  Id.  The Court refused to accept that the risk to employers “justifies a categorical rule that third-party reprisals do not violate Title VII.”  Id. 

North American Stainless also argued that it was Thompson’s status as a third-party (not the “opposor” of its allegedly discriminatory practices) that required that his case be dismissed.  (This issue seemed to be on the Justices’ minds, because one of the first questions posed to the appellant’s attorneys in oral argument was why the retaliation claim was not brought by Ms. Regalado herself.)  Nevertheless, the Court disagreed, referring to Title VII’s language of allowing “a civil action [to] be brought…by the person claiming to be aggrieved.”  Id. at 869 (quoting 42 U.S.C. Section 2000e-5(f)(1)).  While the scope of “those aggrieved” is not as broad as general-standing concepts, the Court described that Title VII was intended to prevent retaliation and permits any “aggrieved” individual to bring suit for retaliation so long as he or she has “an interest [that is] arguably [sought] to be protected by the statutes.”  Id. at 870 (quotation marks and citation omitted).

The concurring opinion, authored by Justice Ginsburg, and joined in by Justice Breyer, noted that the decision accorded with the EEOC’s views and cited to the EEOC’s compliance manual, which provides that claims of retaliation of co-worker relatives “can be challenged by both the individual who engaged in the protected activity and the relative.”  Id. at 871 (J. Ginsburg, concurring) (quoting the EEOC Compliance Manual at Section 8-II(B)(3)(c)). 


It likely would not have been surprising, or very difficult, for the conservative Roberts Court to have sided with North American Stainless.  It not only failed to do so, but it failed to do so in a resounding manner.  The unanimous Court’s opinion references it had “little difficulty” reaching its decision.  The Court resisted the allure of a bright-line rule and concluded that if an employer terminates a “co-worker relative” to retaliate against another who has opposed discriminatory practices, both can file a retaliation charge under Title VII.

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