It has been almost three years since the U.S. Supreme Court decided Thompson v. North American Stainless,1 a case that opened the door to an ever-evolving new category of retaliation plaintiffs.

Pre-Thompson, federal retaliation claims were typically brought against employers by one type of plaintiff: an employee claiming to have suffered adverse action in retaliation for his or her engagement in protected activity, such as complaining to management about discrimination. Thompson significantly expanded the reach of the already broad anti-retaliation provision of Title VII of the Civil Rights Act of 1964 by endorsing the concept that federal anti-retaliation law can cover certain claims brought by third parties who did not engage in protected activity. The so-called “third-party retaliation” cause of action allows an individual who is related or otherwise connected to a discrimination complainant to assert that he or she was retaliated against for the complainant’s protected activity. For example, a plaintiff who works for the same employer as her husband might allege that she was fired in retaliation for her husband having sued the employer for race discrimination.

Although the Supreme Court in Thompson gave general guidance as to which parties may bring a third-party retaliation claim, it was left to the federal district courts to make fact-based determinations as to how close an individual must be to the complaining party to assert a retaliation action. As district courts continue to grapple with this question, their recent decisions provide us with insight as to the scope—and the limitations—of the third-party retaliation doctrine.

Retaliation

Title VII of the Civil Rights Act of 1964 makes it an

unlawful employment practice for an employer to discriminate against any of his employees…because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.2

This provision has been interpreted broadly to prohibit employers from any action that might “dissuade[] a reasonable worker from making or supporting a charge of discrimination.”3

According to Equal Employment Opportunity Commission statistics, the number of retaliation claims brought against employers each year has doubled since 1997. Retaliation charges now comprise 38 percent of all EEOC charges filed and, for the past several years, retaliation has been the most common discrimination complaint filed in federal court.

The ‘Thompson’ Decision

Prior to the Supreme Court’s decision in Thompson, the federal circuits were split on the question of whether third-party retaliation claims were cognizable under Title VII. The Second Circuit had not ruled on the issue.4

Thompson case involved Eric Thompson and his fiancée, Miriam Regalado, both employees of North American Stainless (NAS). NAS fired Thompson three weeks after the EEOC informed the company that Regalado had filed a charge of sex discrimination against it. The Washington district court granted summary judgment to NAS on Thompson’s retaliation action, concluding that Title VII does not permit claims of third-party retaliation. The Sixth Circuit affirmed.

On appeal, the Supreme Court unanimously held that the Title VII language allowing a civil action to be brought by a person “claiming to be aggrieved” refers to anyone who falls within the “zone of interests” sought to be protected by the statute. As an employee of NAS and “collateral damage, so to speak, of the employer’s unlawful act,” Thompson, the court held, was within the zone of interests that Title VII protects. Therefore, his retaliation lawsuit could stand.

Although Thompson was a Title VII discrimination case, certain courts have applied its holding with equal force to retaliation claims under the Age Discrimination in Employment Act5 and in the context of First Amendment political affiliation retaliation pursuant to 42 U.S.C. §1983.6

Who Is in the Zone?

The Supreme Court, in Thompson, adopted a “zone of interests” litmus test for third-party retaliation claims but did not define the parameters of that zone. Rather, the court left it to the district courts to decide on a case-by-case basis which relationships fall within the zone of interests. The Thompson court did offer the following guidance:

[F]iring a close family member will almost always meet the [] standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize.7

Since Thompson, federal district courts have, not surprisingly, allowed retaliation claims to proceed where plaintiffs were married to8 or dating9 an employee who engaged in protected activity and where the complaining employee and the plaintiff were immediate family members.10 More complicated cases arise when the plaintiff’s connection to the complaining party is not as close as that of a spouse or other family member.

The Friend

In the continuum of relationships that places “family member” on one end and “mere acquaintance” on the other, a friend would seem to fall squarely in the middle. Recent cases involving retaliation against the friend of a complaining employee illustrate the courts’ general willingness to entertain these claims.

When public safety officer Pamela Cooper was put on probation by her employer, the City of North Myrtle Beach, S.C., she sued the city, alleging that she was being disciplined in retaliation for her friend Carol Johnson (also a city employee) having filed a charge of gender discrimination against the city. Noting that Cooper and Johnson were friends, the South Carolina district court concluded that “the circumstances presented here fall somewhere between the ‘firing of a close family member’ and ‘a milder reprisal on a mere acquaintance.’”11 Although summary judgment was ultimately granted to the city when it proffered a legitimate, non-retaliatory reason for putting Cooper on probation, the case reflects one district court’s willingness to consider the possibility that a friendship may form the basis for a retaliation claim by an employer.

Another recent “friend” case involved a claim by Washington, D.C. firefighter Tarick Ali that his employer threatened to terminate Ali’s best friend and colleague, Marcus Craig, if Ali pursued a religious discrimination complaint against his supervisor.12 The court denied the defendant employer’s motion for summary judgment on the retaliation claim, concluding that a factual dispute existed as to whether threatening the plaintiff’s best friend with termination was unlawful under Thompson. Acknowledging that a best friend was not as close a relation as the fiancée in Thompson, the court nonetheless reasoned that “[c]ommon sense suggests…that[] a reasonable worker would be deterred from pursuing a discrimination complaint by a credible threat to fire a close friend.”

The Coworker

Where does a coworker fall on the third-party retaliation continuum? As with the “friend” cases, the closeness of the particular relationship is usually the deciding factor for the court.

Ross Williams, a pharmaceutical sales representative for Daiichi Sankyo, Inc. (DSI), was terminated by DSI after it was determined that he had neglected his administrative responsibilities and failed to improve his performance despite months of coaching and multiple warnings.13 Williams alleged discriminatory discharge based on gender and retaliation based on his boss’s perception that Williams was friendly with Philip Lamb, a district manager who had filed an EEOC discrimination charge against DSI.

Williams and Lamb were neighbors who socialized together approximately once every four months. According to Williams, the manager who fired him, Kerri Colvin, perceived the two to be good friends. Ultimately, the friendship, real or perceived, was not close enough for the Alabama district court, which found “it charitable to even consider Lamb an acquaintance of Mr. Williams in light of the evidence that the coworkers saw each other only very rarely in a social setting.” According to the court:

Even assuming that Mr. Colvin did think Mr. Williams and Mr. Lamb were friends, that still does not put Mr. Williams in the category of relationships that the Supreme Court ruled were appropriate third-party reprisal claims in Thompson.

The Corporate Bystander

A recent Delaware district court case illustrates another attempt to test the boundaries of the Thompson zone of interests.

In Crawford v. George & Lynch,14 the plaintiff owned CTC, a trucking company. Crawford entered into a hauling contract on CTC’s behalf with the defendant, a contracting firm, and maintained an ongoing business relationship with the defendant for several years until it recruited her for a position as a dispatcher. Before accepting the job, Crawford expressed concern that her employment might impact CTC’s contract with the defendant. Shortly after taking the dispatcher job, Crawford reported to her new employer that she had been sexually harassed by a colleague. She sued the defendant, alleging that she was transferred and demoted the day after she complained and that CTC’s business relationship with the defendant was effectively terminated, all in retaliation for her complaints.

The Delaware district court did not hesitate to find that Title VII protected Crawford from retaliation by her employer. But the case had an unlikely co-plaintiff: CTC. Crawford argued that her company, having lost its contract with the defendant as a direct result of Crawford’s complaints, was a victim of third-party retaliation by the defendant. According to Crawford, her early expression of concern about the future of the relationship between CTC and the defendant put CTC in the “zone of interests” defined by Thompson. She argued that, if the courts could extend third-party standing to employee spouses and friends of the complainant, they could extend it one step further to a corporate entity owned by the complainant.

The district court granted the defendant’s motion to dismiss CTC’s claims, holding that extending the “zone of interests” to include a non-human entity that was not employed by the defendant would be taking Thompson farther than was intended. “[A]ccepting Plaintiff’s argument that an employer’s termination of a contract with a business entity owned by an employee constitutes retaliation for the employee’s protected conduct,” according to the court, “would result in a new and substantial expansion of the law on third party reprisal claims under Title VII.”15

Conclusion

As the case law regarding third-party retaliation continues to develop, it remains to be seen how far courts will stretch the zone of interests outlined by the Supreme Court in Thompson. One thing is already clear: The need for fact-based decision-making regarding the interrelatedness of the parties means that a genuine issue of material fact will almost always exist in third-party retaliation cases, making summary judgment in these cases particularly elusive.

Jack Kiley is a partner, and Shira Forman an associate, in the labor and employment group of Sheppard Mullin Richter & Hampton’s New York office.

Endnotes:

1. 131 S. Ct. 863, 178 L.Ed.2d 694 (2011).

2. 42 U.S.C. §2000e-3(a).

3. Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 68 (2006).

4. Parker v. AECOM USA, 3:09-CV-1078WWE, 2010 WL 625417 (D. Conn. Feb. 17, 2010).

5. Dembin v. LVI Services, 822 F. Supp. 2d 436 (S.D.N.Y. 2011) (daughter could bring retaliation claim under ADEA based on her father’s age discrimination complaint).

6. Montone v. City of Jersey City, 709 F.3d 181 (3d Cir. 2013).

7. Thompson, 131 S.Ct. at 868.

8. See, e.g., O’Donnell v. America at Home Health Care and Nursing Services, 20 Wage & Hour Cas.2d (BNA) 1052 (2013)

9. See, e.g., Lard v. Alabama Alcoholic Beverage Control Board, 2012 WL 5966617, (M.D. Ala. Nov. 28, 2012).

10. See, e.g., Lopez v. Four Dee, No. 11-CV-1099, 2012 WL 2339289, *3 (E.D.N.Y. June 19, 2012) (“[I]t might be concluded that the defendants intended to punish Lopez by firing her sister”).

11. Cooper v. City of North Myrtle Beach, 2012 WL 1283498. *7 (D.S.C. Jan. 25, 2012).

12. Ali v. District of Columbia Government, 810 F. Supp. 2d 78 (D.D.C.2011).

13. Williams v. Daiichi Sankyo, 118 Fair Empl. Prac. Cas. (BNA) 840 (N.D. Ala. May 20, 2013).

14. 116 Fair Empl. Prac. Cas. (BNA) 1338 (D. Del. 2012).

15. Id. at *3.