VanDeusen and Simons on Thompson v. North American Stainless, LP

VanDeusen and Simons on Thompson v. North American Stainless, LP

by Darrell VanDeusen and Adam T. Simons (Mr. Simons is an associate at Kollman & Saucier, having recently completed a clerkship on the Maryland Court of Special Appeals)

The Court will revisit the issue of retaliation in Thompson v. North American Stainless, LP, 567 F.3d 804 (6th Cir. Ky. 2009), where it will determine whether Title VII prevents an employer from firing a closely-associated employee in response to a protected employee's actions. In this Analysis, Darrell VanDeusen and Adam T. Simons explain the 6th Circuit's decision, discuss the parties' certiorari briefs and provide an analysis of the practical effect of the Court's decision. They write:

     Consider the following hypothetical: Zeke and his sister Zelda work for XYZ Corp. A supervisor fails to promote Zelda, and tells her that he made the decision because she is a woman -- clear and unambiguous sex discrimination. Zelda files a charge with the Equal Employment Opportunity Commission (EEOC), claiming that XYZ Corp. violated Title VII. Zeke has done nothing and said nothing about this situation. But, learning that Zelda filed an EEOC charge -- and precisely because she did so -- XYZ Corp. retaliates by firing Zeke. Has XYZ Corp. violated Title VII by firing Zeke? If so, does Zeke have the right to sue XYZ Corp. for violating the anti-retaliation provisions of Title VII? Does the result change if Zeke and Zelda are spouses? Significant others? Cousins? Really good friends?

     This law school exam question mirrors the issues presented to the Court in Thompson. On June 29, 2010, the Court granted certiorari to determine first, whether Title VII prohibits an employer from dismissing a closely-associated employee in response to a protected employee's actions and, second, if such action is prohibited, whether the closely-associated employee may sue the employer for violating Title VII. The Sixth Circuit held that an employer does violate Title VII by retaliating against a third party, but also held that the third party does not have a cause of action against the employer for the unlawful retaliation. Instead, only a person who engaged in protected activity may bring a suit.

     . . . .

Thompson's Petition for Writ of Certiorari

     On September 3, 2009, Thompson filed a Petition for a Writ of Certiorari. In that Petition, he phrased the questions presented as follows:

Section 704(a) of Title VII forbids an employer from retaliating against an employee because he or she engaged in certain protected activity. The questions presented are:

(1) Does section 704(a) forbid an employer from retaliating for such activity 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?

(2) If so, may that prohibition be enforced in a civil action brought by the third party victim?    

     . . . .

Analysis and Implications

     This case is intriguing for a number of reasons, but particularly intriguing is that the parties have opposing views as to the actual issue before the Court. Clearly, Thompson asserted in his Petition that the court must determine both whether the actions taken by North American are illegal and, if so, whether he can bring a suit to redress the retaliation. By contrast, both North American and the United States considered the illegality of such actions to be a settled issue, and that the real issue before the court is who may bring suit to challenge the employer's allegedly retaliatory action. Both agree that retaliation against a third party is illegal; thus, the only issue is who can sue. In all likelihood, however, the Court will summarily address the issue of whether the retaliation is unlawful and focus mainly on the second issue.

(footnotes omitted)

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