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Employers are prohibited from retaliating against a worker who has filed a discrimination complaint by making reprisals against that worker’s fiancé, family members or other close associates, the Supreme Court ruled on Monday. In what became known as “the case of the fired fiancé,” the justices unanimously held that the anti-retaliation provision in the nation’s major job bias law — Title VII — permits third-party retaliation claims. That provision, wrote Justice Antonin Scalia for the Court, must be interpreted “to cover a broad range of employer conduct.” “I think the Supreme Court is showing they are serious about this subject. They are broadly interpreting the provision, and employers would do well to heed it,” said Anthony Oncidi, chair of the labor and employment department in the Los Angeles office of Proskauer Rose. Thompson v. North American Stainless stemmed from a suit filed by Eric Thompson who, with his then fiancée, Miriam Regalado, worked for North American Stainless in 2002. In that year, Regalado filed a sex discrimination charge against their employer with the Equal Employment Opportunity Commission. Three weeks after being notified of the complaint, the company fired Thompson. Thompson subsequently sued the company claiming it had fired him in order to retaliate against Regalado for filing her discrimination complaint. The district court held that Title VII did not permit third-party retaliation claims, and an en banc U.S. Court of Appeals for the 6th Circuit affirmed, 10-6. The 3rd, 5th and 8th circuits agreed with the 6th Circuit on whether third-party claims are permitted, but a number of federal district courts did permit them. The Equal Employment Opportunity Commission also interpreted Title VII to permit such claims. Thompson, represented by Eric Schnapper of the University of Washington School of Law, raised two issues in the Supreme Court: Did the company’s firing of him constitute unlawful retaliation, and if it did, could he bring a lawsuit under Title VII? In the Court’s opinion, Scalia said Title VII’s anti-retaliation provision prohibits any employer action that 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,” he wrote in an eight-page opinion. He acknowledged but rejected the company’s arguments that prohibiting reprisals against third parties would lead to difficult line-drawing problems concerning the kinds of relationships entitled to protection. The company, represented by Leigh Latherow of VanAntwerp, Monge, Jones, Edwards & McCann in Ashland, Ky., had argued that under the “might have dissuaded a reasonable worker” standard, employers would be at risk any time they fired a worker who had a connection to another employee who had filed a discrimination charge. Firing a close family member will “almost always” meet the standard and inflicting “a milder reprisal on a mere acquaintance” will “almost never” meet it, wrote Scalia, “but beyond that we are reluctant to generalize.” The question of whether Thompson himself could bring a retaliation suit was “more difficult,” according to Scalia. The statute, he said, says a civil action “may be brought…by the person claiming to be aggrieved.” He rejected arguments that anyone could sue if he or she satisfied the requirements for Article III standing because, he said, it would lead to “absurd consequences.” For example, he explained, a shareholder would be able to sue a company for firing a valuable employee for racially discriminatory reasons so long as the shareholder could show a devaluation of his stock as a consequence. Scalia also rejected arguments at the other extreme — that “person aggrieved” is a term of art in the statute referring only to the person who engaged in protected activity — in this case, Regalado. Instead, looking at the Administrative Procedure Act, Scalia said Title VII permits a suit by anyone who falls within the zone of interests sought to be protected by the law. “Thompson was an employee of NAS, and the purpose of Title VII is to protect employees from their employers’ unlawful actions,” he wrote. “Hurting him was the unlawful act by which the employer punished [Regalado].” In those circumstances, said Scalia, Thompson is “well within the zone of interests” protected by Title VII. Justice Ruth Bader Ginsburg, joined by Justice Stephen Breyer, filed a concurring opinion, noting that the decision agrees with the “longstanding views” of the EEOC. Employment law scholar Paul Secunda of Marquette University School of Law called the decision “an easy one.” The zone of interests test, he added, is like a balancing test and is particularly appropriate when dealing with “mushy concepts” like justice, fairness and efficiency. “It could be reasonably assumed Congress didn’t intend for employers to do an end run around the statute [by retaliating against third parties],” he said. Proskauer’s Oncidi predicted the decision will result in another increase in the rapidly growing category of job retaliation claims. “I practice in California and they are extremely commonplace now, and not just in the discrimination context.” Marcia Coyle can be contacted at [email protected]. This article originally appeared in the Supreme Court Insider. Sign up for the newsletter, featuring exclusive high court news and analysis.

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