The Supreme Court’s recent ruling in Thompson v. North American Stainless has caused some commentators to sound the alarm warning employers of employee friendly courts and impending lawsuits as a result of the decision. Hans Bader of the Washington Examiner wrote that the Thompson decision shows the Supreme Court is not pro-business. Tim Gould of the website HRMorning.com warns that the decision will result in increased employer exposure to retaliation lawsuits. However, for California employers, the ruling represents just another pro-employee decision which is part of doing business in California’s pro-employee environment.
In Thompson, Miriam Regalado and her fiancé Eric Thompson were employees of North American Stainless (NAS). Regalado filed a charge alleging sex discrimination against NAS with the Equal Opportunity Commission (EEOC) which, in turn, notified NAS of the complaint in February 2003. Within weeks of learning of the charge, NAS fired Thompson. Following his termination, Thompson filed his own EEOC charge and sued NAS under Title VII of the Civil Rights Act of 1964 claiming the company fired him to retaliate against Regalado for filing her EEOC charge. Both the District Court and the U.S. Court of Appeals affirmed the dismissal of Thompson’s Title VII claim on the ground that the law does not permit third party retaliation claims. The Supreme Court reversed the Court of Appeals’ decision on the ground that NAS’s firing of Thompson was retaliatory and that he could sue NAS for violation of Title VII.
The Court reasoned that the purpose of Title VII’s anti-retaliation provision is to prohibit any employer action that might dissuade a reasonable worker from making or supporting a discrimination charge. Thus, the Court thought “it obvious” that a reasonable worker might be dissuaded from filing a complaint against her employer if she knew her fiancé would be fired. Although the Court declined to identify “a fixed class of relationships” for which third party reprisals are unlawful, it indicated that a close family member who is fired will “almost always” be able to assert a claim under Title VII while a “mere acquaintance” will “almost never” be able to do so. The Court also reasoned that Thompson was a “person aggrieved” for standing purposes because he fell 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. Finally, the Court found Thompson was not an accidental victim of retaliation. Rather, NAS intentionally fired him in order to punish Regalado for filing her EEOC charge.
While the Thompson decision is significant and will undoubtedly spawn more lawsuits nationwide, employment claims by third parties are not an entirely new concept in California. Government Code section 12926(m), part of California’s Fair Labor and Employment Act (FEHA), already gives employees the ability to sue their employers over adverse actions taken against them because of their association with “another person” in a protected class (e.g. race, marital status, sex). However, it remains to be seen whether this FEHA provision would provide a basis for a claim such as the one asserted by Thompson. Thus, employers should make sure that the harassment training provided to employees, supervisors and managers includes a discussion which educates them on the possibility of third party employment claims. Employers should also consider revising existing anti-harassment policies to explicitly prohibit discrimination, harassment and retaliation against an employee who associates with a person, including another co-worker, in a protected class.