Today the Supreme Court issued a landmark decision that prohibits employers from retaliating against a whistleblower’s family members or other associates. The decision in Thompson v. North American Stainless LP is unanimous, and reverses an en banc decision of the Sixth Circuit Court of Appeals in Cincinnati, Ohio. The decision makes clear that victims of retaliation do not have to show that they themselves engaged in any “protected activity.” Instead, they must show that they are “person[s] aggrieved” by unlawful retaliation. The Supreme Court declines to identify any “fixed class of relationships for which third-party reprisals are unlawful.” Instead, courts will have to decide the application in each case, based upon “the particular circumstances.” In the decision, the Supreme Court relies heavily on its 2006 decision in Burlington N. & S. F. R. Co. v. White, 548 U. S. 53. The Court today reiterates that employers are not allowed to take any action that would dissuade a “reasonable worker” from engaging in protected activity. The Court recognizes that this standard “must be construed to cover a broad range of employer conduct.” The Court said that it is “obvious” that allowing employers to fire a fiance would discourage employees from raising concerns about violations of the law.
Until recently, I thought this issue had been well settled. The EEOC had long held that employers may not retaliate against those associated with others who engaged protected activity. Courts, including the Sixth Circuit, had agreed that spouses, for example, had a right to sue when they suffered retaliation prompted by the other spouse’s protected activity. See, for example, EEOC v. Ohio Edison, 7 F.3d 541 (6th Cir. 1993). The National Labor Relations Board (NLRB) had also held that retaliation against relatives was against the law. See NLRB v. Advertisers Mfg. Co., 823 F.2d 1086, 1088-89 (7th Cir. 1987). Since then, a series of more hostile appellate court decisions have barred such claims. Today, that era of hostility is over.
North American Stainless (NAS) hired Eric Thompson as a metallurgical engineer for its plant in Carroll County, Kentucky, in 1997. In 2000, NAS hired Miriam Regalado. Soon, Miriam and Eric became engaged. They are today married to each other. In September 2002, Miriam filed a charge with the EEOC claiming that NAS discriminated against her on account of her gender. On February 13, 2003, EEOC notified NAS of the charge. On March 7, 2003, NAS fired Eric. NAS claims that it discharged Eric because of his performance. Eric filed his own EEOC charge claiming that he was fired in retaliation for Miriam’s complaint.
A district court dismissed Eric’s complaint holding that he could not sue because he never engaged in protected activity. On appeal, a three-judge panel of the Sixth Circuit held that Eric could sue. Thompson v. North American Stainless, LP, 520 F.3d 644, 645-46 (6th Cir. 2008). Most of the rest of the Sixth Circuit judges disagreed and vacated the panel’s decision. After they voted 10-8 to dismiss Eric’s retaliation claim, the Supreme Court agreed to review it.
At the Supreme Court, my hero, Eric Schnapper of Seattle, Washington, wrote a focused brief for Thompson explaining why the law depends on allowing retaliation claims for all aggrieved persons. Attorney Michael Foreman of University Park, Pennsylvania, led a team of lawyers in preparing a friend-of-the-court (“amicus”) brief for various civil rights organizations. Congratulations to them all for this outstanding result.