Tuesday, January 25, 2011

It’s déjà vu all over again—Supreme Court recognizes associational retaliation

In The Gay Science, Friedrich Nietzsche explained his theory of the eternal recurrence—that if the universe is infinitely big, time is eternally long, and everything that exists in that universe is made up of a finite number of elements, then over the course of eternity everything that happens will happen again. For the theory of associational retaliation under Title VII, eternity didn’t even last four years.

In Thompson v. North American Stainless, the 6th Circuit originally recognized the theory of associational retaliation – that Title VII prohibits an employer from retaliating by inflicting reprisals on a third party (such as a spouse, family member, or fiancé) closely associated with the employee who engaged in such protected activity but who engaged in no protected activity of his or her own.

Sometimes, it stinks to be right. In its unanimous opinion [pdf], the Court recognized that certain employees, within the “zone of interests” protected by Title VII, will have a valid claim for associational retaliation:
Title VII’s antiretaliation pro­vision prohibits any employer action that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” … We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired…. We … decline to identify a fixed class of relation­ ships for which third-party reprisals are unlawful. We expect that firing a close family member will almost al­ways meet the Burlington standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize…. 
[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.
What does all this mean?
  1. This supposed pro-business Court continues to be decidedly anti-business when it comes to protecting employees from retaliation, and even the most conservative members of this Court are open to expanding civil rights when it satisfies a policy they consider important.
  2. Employers are now subject to retaliation for taking an adverse action against anyone “closely related” to an employee who engaged in protect activity.
  3. To claim associational retaliation, the aggrieved employee must prove that the employer intended to injure the associated employee by its action against the aggrieved employee.
For employers, there are no bright-line rules for associational retaliation. The real import of this decision is the same as when the 6th Circuit first recognized this new theory of liability nearly four years ago. As I said at that time:
If Title VII protects those "who are so closely related to or associated" with employees who engage in protected activity, it simply begs the question, how close is close enough? In Thompson, the relationship was a fiancée. It is safe to assume liability will also extend to action taken against spouses. What about boyfriends and girlfriends? How long do you have to date to be protected from retaliation? The same protection also will probably extend to parents and children. What about siblings? Grandparents? Cousins? 3rd cousins twice removed? In-laws? Friends? Carpoolers? The people you share your lunch table with? The person you sat next to in 3rd grade? How close is close enough for an employer to intend for its actions to punish the exercise of protected activity? Do employers now have to ask for family trees and class pictures as part of the orientation process? 
These questions, none of which the Thompson court answers, could hamstring employers from making any employment decisions for fear of doing something against someone who has some relationship to someone else who complained about something last October. The implications of this case have the potential to reach that level of silliness. The best course of action is still to make legitimate personnel decisions for bona fide business reasons and let the chips fall where they may.