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The Supreme Court on Tuesday seemed divided on whether the nation’s major job bias law allows lawsuits against employers who retaliate against the fiancé, best friend or other third party in a close relationship with a worker who has complained of discrimination.

During arguments in Thompson v. Northern American Stainless, justices voiced competing concerns that the law’s protection be broad enough to cover true acts of reprisals and yet not so broad that employers face lawsuits by individuals who lack a close association with the employee who charged discrimination.

"Where it’s a fiancé [who is the victim of retaliation], that’s a relatively strong case," said Justice Samuel Alito Jr. But, he added, he could imagine a "whole spectrum of cases" where the relationship is less serious and retaliation lawsuits are filed. "Where is the line?" he asked.

Both Eric Thompson and his then-fiancee Miriam Regalado were working at Northern American Stainless in Kentucky when Regalado in 2002 filed a sex discrimination charge against the company with the Equal Employment Opportunity Commission. Three weeks after the company was notified of the complaint, it fired Thompson.

Title VII of the Civil Rights Act of 1964 prohibits retaliation against an employee who reports discrimination or who participates or testifies in an employment discrimination proceeding. The law’s language, however, does not expressly cover someone in Thompson’s position.

Last year, the U.S. Court of Appeals for the 6th Circuit ruled 9-6 in favor of the company. The court said the text’s plain language did not include Thompson because "he personally did not oppose an unlawful employment practice, make a charge, testify, assist, or participate in an investigation."

In the Supreme Court, Thompson’s counsel, Eric Schnapper of the University of Washington School of Law, told the justices that the law’s text does not limit the types of retaliation that are prohibited. When an employer singles out a family member or a fiancé, he argued, the purpose of the retaliation is to punish a worker who engaged in activity protected by the law.

Schnapper faced a series of questions about whether Regalado, instead of Thompson, should have filed the retaliation suit.

"Couldn’t she have gotten re-instatement or back pay for him as an ongoing hurt to her?" asked Justice Antonin Scalia.

Schnapper expressed skepticism that Regalado would have standing to seek that remedy. He argued that Thompson was the proper party because he meets the definition of a "person aggrieved," a definition that Title VII uses when stating who can bring a lawsuit.

"Thompson is aggrieved because he was fired for a reason that was an improper reason," said Schnapper.

Chief Justice John Roberts Jr. and Justices Scalia and Alito asked acting Principal Deputy Solicitor General Leondra Kruger, who argued in Thompson’s support, how an employer is to know whether co-workers have special relationships in the event the employer wants to take an adverse action against one and another has a pending discrimination charge.

"Do you have to determine if the person has a close relationship, if he is dating, or keep a journal on casual and intimate relationships?" asked Alito. "What is the degree of closeness required?"

Kruger said there is "no hard and fast line." If an employer does not know that a relationship exists, she said, there is no plausible causal connection between the adverse action and the discrimination complaint. Most court cases involving third-party retaliation suits, she added, have involved parent-child, spousal and very close friend relationships.

The company’s counsel, Leigh Gross Latherow of VanAntwerp, Monge, Jones, Edwards & McCann in Ashland, Kent., told the justices that under Schnapper’s view, any person, even someone who is not an employee, who claims to have been injured is an "aggrieved" person who may bring a retaliation lawsuit.

But Justice Ruth Bader Ginsburg countered, "You suggest this claims to be taking `aggrieved’ to new heights." However, she noted, a number of federal statutes protected close relatives and third parties and have done so for a long time. She named the National Labor Relations Act, among others.

Latherow said cases that have interpreted the word broadly have involved violations with the potential to inflict harm on a large number of people.

"The 6th Circuit was correct," she argued. The Supreme Court in its 2006 decision in Burlington Northern & Santa Fe v. White, she added, "clearly held that the anti-retaliation provision [in Title VII] was designed to protect employees based on what they did." Thompson "engaged in no protected conduct," she said.

Latherow also warned that employers had serious concerns if third parties could bring retaliation lawsuits — now the fastest growing category of discrimination complaints. They would be afraid to take any adverse actions against employees for fear of such a lawsuit.

The Equal Employment Opportunity Commission has interpreted the anti-retaliation provision to permit suits by third parties.

Marcia Coyle can be contacted at [email protected].

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