Is Protection Against Employment Retaliation Expanding?

It seems that employment retaliation claims are increasing, and courts are becoming less and less forgiving of employers who participate in such unlawful conduct. Even more conservative judges, who generally appear to be more supportive of the company or employer in discrimination cases, express an intolerance for retaliation against employees who assert discrimination claims.

Although many of the employment cases that have been decided by the United States Supreme Court over the last decade have made it more difficult for plaintiffs to maintain discrimination cases, the rights of employees who complain of retaliation, on the other hand, seem to be more expansive.

What is a retaliation claim?

Most employees are aware that there are laws to protect against workplace discrimination and harassment. There are also laws that protect employees from retaliation by their employers when they make complaints regarding illegal discrimination or harassment. This protection means that your employer cannot punish you for complaining about discrimination or harassment, nor for participating in an investigation into such complaints.

"Legally protected activity," in the retaliation context, takes the form of either participation or opposition to unlawful discrimination. In other words, an employee is protected for either opposing a practice believed to be unlawful discrimination or participating in an employment discrimination proceeding. A unique issue can arise when the person who was allegedly retaliated against was not the person opposing or participating.

Is "third-party" retaliation actionable?

One illustration was the case of Thompson v. North American Stainless, a unanimous decision handed down by Justice Scalia, one of the most conservative justices currently on the bench. The issue in that case was whether Title VII protected against so-called "third-party retaliation." The plaintiff in the Thompson case had not complained of workplace discrimination or any other illegal conduct. Instead, his fiancé had complained of sex discrimination and, three weeks later, Thompson was fired. The case was initially dismissed by the trial court, which reasoned that Title VII does not cover retaliation against someone who was only associated with an employee who complained.

Retaliation vs. Discrimination

However, the Supreme Court reasoned that Title VII's anti-retaliation provision must be construed to cover a broad range of employer conduct. While Title VII's discrimination provision specifies that only employer conduct which "affects the terms and conditions of employment" is actionable, the anti-retaliation provision does not limit employer conduct in this manner. Instead, the prohibition in the anti-retaliation provision extends to any conduct which "might dissuade a reasonable worker from either making or supporting a charge of discrimination."

Considering the language of the statute in this way, the Supreme Court found it "obvious" that a reasonable worker may be dissuaded from supporting a charge of discrimination if she knew that her fiancé may ultimately be fired. Therefore, the Court recognized that the firing of a close family member, including a fiancé, will almost always qualify for protection under the anti-retaliation provision of Title VII. However, in reaching this decision, the Supreme Court fell short of creating a categorical rule regarding the level of relationship necessary to come within the statute's protection.

If you feel you have been the victim of retaliation, or if you have any questions regarding your employment rights, please contact Wrady & Michel, LLC, either online or by calling us at (205) 265-1880.

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