The anti-retaliation provision of Title VII of The Civil
Rights Act of 1964, as amended ("Title VII") prohibits an employer from
"discriminat[ing] against any of his employees . . . because he has made a
charge" under Title VII. 42 U.S.C. § 2000e-3(a). Title VII allows
"a person claiming to be aggrieved" to file a charge with the U.S. Equal Employment
Opportunity Commission (the "EEOC") alleging that the employer committed an
unlawful employment practice, and, if the EEOC declines to sue the employer,
the statute permits a civil lawsuit to "be brought . . . by the person claiming
to be aggrieved . . . by the alleged unlawful employment practice." 42
U.S.C. § 2000e-5(b), (f)(1) [accessible
by lexis.com subscribers].
In Thompson v. North American Stainless, LP [access
not restricted], 2011 U.S. LEXIS 913 (Jan. 24, 2011), a unanimous
U.S. Supreme Court held that it constitutes retaliation violative of Title VII
for an employer to fire an employee's fiance because the employee filed
a charge of discrimination against the employer with the EEOC.
Accordingly, the Thompson Court reversed the judgment of the U.S. Court
of Appeals for the Sixth Circuit, on rehearing en banc, affirming the
U.S. District Court's order granting summary judgment for the defendant
employer; and remanded the plaintiff fiance's case for further proceedings.
More specifically, the U.S. Supreme Court held in Thompson
that an employer, by firing a worker's fiancee because that worker has
filed a discrimination charge against the employer, unlawfully
"discriminate[s]" against the worker within the meaning of Title VII's
anti-retaliation provision, 42 U.S.C. § 2000e-3(a)
[accessible by lexis.com subscribers]. The Thompson Court
further held that, in such a scenario, the terminated fiance of the worker is
"a person claiming to be aggrieved," 42 U.S.C. § 2000e-5(b), (f)(1), who may
sue the employer under Title VII for unlawful termination.
The Thompson Court, observing that Title VII's
anti-retaliation provision prohibits any employer action that " 'well might
have dissuaded a reasonable worker from making or supporting a charge of
discrimination,' " explained: "We think it obvious that a reasonable worker
might be dissuaded from engaging in protected activity if she knew that her
fiance would be fired."
In Thompson, the U.S. Supreme Court "decline[d] to
identify a fixed class of relationships for which third-party reprisals are
always unlawful." Thus, for example, the Thompson Court left for
another day whether it would constitute retaliation violative of Title VII for
an employer to fire "an employee's girlfriend, close friend, or trusted
co-worker" because the employee filed a charge of discrimination against the employer.
Under the anti-retaliation provision of the New York
State Human Rights Law, an employer or supervisor may not "discharge,
expel or otherwise discriminate against" any employee because he or
she has opposed any unlawful discrimination or harassment, filed a
complaint alleging discrimination or harassment, or testified or assisted in
any proceeding for harassment or discrimination. N.Y. Exec. Law § 296(1)(e) [accessible by lexis.com subscribers]; see N.Y. Exec.
Law § 296(3-a)(c), 296(7).
It's an open question whether, under the New York State
Human Rights Law, retaliation claims are limited to actions taken against
the complaining employee. That is, under New York law, it's
an open question whether illegal retaliation can be demonstrated where an
employer retaliates against co-workers, friends or relatives of an employee for
the employee's assertion of discrimination.
This author predicts that the New York state courts, and
federal courts situated within this State, will follow, as persuasive
authority, the U.S. Supreme Court's Thompson decision. That
is, given Thompson's interpretation of Title VII's anti-retaliation
provision, this author expects this State's courts to hold that the New York
State Human Rights Law allows retaliatory discharge lawsuits by individuals who
are sufficiently close to an employee who files a charge of discrimination.
If your company needs a lawyer to defend it in a wrongful
termination lawsuit and your company is located in the New York City area, call
Attorney David S. Rich at (212) 209-3972.
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