U.S. Supreme Court Allows Retaliatory Discharge Lawsuits By Persons Sufficiently Close To An Employee Who Makes A Discrimination Charge; Will New York State Courts Do The Same?

U.S. Supreme Court Allows Retaliatory Discharge Lawsuits By Persons Sufficiently Close To An Employee Who Makes A Discrimination Charge; Will New York State Courts Do The Same?

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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