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WN 6U Retaliation | HAWAII LABOR & EMPLOYMENT LAW

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Supreme Court Recognizes Claim For Third-Party Retaliation

The United States Supreme Court just issued a landmark decision in a case called Thompson v. North American Stainless (S. Ct., January 24, 2011).   In its decision, the Court ruled that Title VII of the Civil Rights Act of 1964 does indeed create a claim of retaliation for individuals in situations where that individual did not himself engage in protected activity.

Specifically, in Thompson, the plaintiff alleged that he was fired from his job because his fiance, who worked for the same company, filed a charge against their employer with the EEOC.  In other words, the plaintiff claimed he was fired for something his fiance did, and not for something he did himself.

The Court’s decision addressed two issues:  (1) whether the plaintiff’s termination constituted “retaliation” as defined by Title VII, and (2) whether the plaintiff had “standing” (or a legal right to file suit) to bring a lawsuit under Title VII.

In addressing the first issue, the Court stated that it had “little difficulty” concluding that the plaintiff’s termination constituted retaliation under Title VII.  In reaching this conclusion, the Court noted that 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.”  Based on this standard, the Court then stated it was “obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiance would be fired.”  Therefore, the plaintiff’s termination constituted retaliation under Title VII.

The Court then declined, however, to establish a fixed-class of relationships for which third-party retaliation would be unlawful under Title VII.  Rather, the Court noted that “firing a close family member will almost always meet the . . . standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so[.]”  Beyond giving these two examples, the Court simply stated that whether third-party retaliation occurred will “depend on the particular circumstances” of the case.

In addressing the second issue, the Court adopted a “zone of interests” test, which protects individuals who have an interest “arguably sought to be protected” by the statute at issue.  Based on the “zone of interests” test, the Court ruled that the plaintiff in this case did indeed have standing to sue his employer under Title VII.

This decision is rather groundbreaking, and effectively overturned the current state of the law in at least four Federal circuits.  This decision also opens the door for all types of lawsuits to be filed by individuals claiming they were the victims of third-party retaliation, and will likely result in a variety of decisions by federal courts trying to delineate when and whether a third-party cause of action for retaliation exists.  Therefore, until courts can provide employers with further guidance on when a claim for third-party retaliation exists, employers should be cautious in issuing disciplinary actions in situations involving close family members such as a fiance, spouse, mother, father, or child of an employee who engaged in protected conduct under Title VII.

You can read the Court’s decision here.  I previously wrote about the high Court’s decision to accept certiorari in a post here.

Does Title VII Create A Claim For Third-Party Retaliation?

Earlier today, the U.S. Supreme Court accepted certiorari in a case called Thompson v. North American Stainless (6th Cir. 2009), which addressed  whether Title VII creates a claim for third-party retaliation for individuals who did not themselves engage in protected activity.  In Thompson, the plaintiff alleged that he was fired from his job because his fiancee, who also worked for the same company, filed a charge against their employer with the EEOC.  In other words, the plaintiff’s claim for retaliation was based on the protected activity of his fiancee, and not himself.

The trial court dismissed the plaintiff’s claim on summary judgment and the Sixth Circuit Court of Appeals agreed with the dismissal.  Both courts found that the plaintiff did not himself  “oppose” a forbidden practice, as required by the plain language of Title VII.  As a side note, the Courts of Appeals from the Third, Fifth and Eighth Circuits have already agreed with this reasoning.

The reasoning of the Sixth Circuit’s decision is rather sound, so it is rather curious that the Supreme Court will be reviewing the decision.  In granting certiorari, the Supreme Court has issued the following Questions Presented:

Section 704(a) of Title VII forbids an employer from retaliating against an employee because he or she engag4ed in certain protected activity.  The questions presented are:

(1)  Does section 704(a) forbid an employer from retaliating for such activity by inflicting reprisals on a third party, such as a spouse, family member or fiance, closely associated with the employee who engaged in such protected activity?

(2)  If so, may that prohibition be enforced in a civil action brought by the third party victim?

Removal From Position Due To Criticism Of Leadership Not Retaliatory

Just yesterday, the Ninth Circuit Court of Appeals ruled that a decision by school board members of the Bethel School District to remove a member from his position as  vice president did not constitute unlawful retaliation in violation of the First Amendment.

In Blair v. Bethel School District (9th Cir., June 14, 2010), the plaintiff alleged that his free speech rights under the First Amendment were violated when his fellow school board members decided to remove him as their vice president because he relentlessly criticized the school district’s superintendent.

In addressing the plaintiff’s claims, the court first noted that the “First Amendment forbids government officials from retaliating against individuals for speaking out.”  In addition, the court noted, to establish a claim for retaliation under Section 1983 of the Civil Rights Act, a plaintiff must prove (a) he was engaged in a constitutionally protected activity; (b) he was subjected to an adverse action; and (c) there was a causal relationship between the protected activity and the adverse action.

The court then denied the plaintiff”s claims for three reasons.  First, his removal as the vice president was a “rather minor indignity, and de minimis deprivation of benefits” because he still remained an active and elected board member.  Second, his removal was “expected” because it was a result of partisan politics.  Third, his removal was “protected” because the other board members had the rights to express their disapproval of the plaintiff’s behavior.

US Supreme Court To Decide Whether Oral Complaint Is Protected From Retaliation Under FLSA

The U.S. Supreme Court recently accepted certiorari in Kasten v. Saint-Gobain Performance Plastics Corp. (7th Circuit 2009), a case dealing with a retaliation claim under the Fair Labor Standards Act (“FLSA”).  In Kasten, the plaintiff alleged he was terminated in retaliation for making an oral complaint to his supervisors that the company’s placement of time clocks violated the FLSA.

In addressing the plaintiff’s claim, the 7th Circuit Court of Appeals noted that the FLSA prohibits retaliation against any employee who “has filed any complaint…” regarding the FLSA.  The court then stated that the “understanding of the phrase ‘file any complaint’ requires the submission of some writing to an employer, court or administrative body.”

The plaintiff appealed the ruling, and the U.S. Supreme Court has granted certiorari to review the 7th Circuit’s decision.  The High Court will address the issue of whether an oral complaint is sufficient to trigger the anti-retaliation provisions of the FLSA.

This appeal raises an interesting question, because the anti-retaliation provisions in Title VII contain different – and much broader – protections for employees than the FLSA.  Title VII prohibits retaliation against any employee who “has opposed any practice made an unlawful employment practice” or “has made a charge, testified, assisted or participated in any manner in an investigation, proceeding, or hearing” under Title VII.”

Eleventh Circuit Upholds Termination Over Myspace Postings

In an unpublished decision, the Court of Appeals for the Eleventh Circuit recently upheld the termination of a firefighter who posted unauthorized pictures of her fire department, as well as modeling pictures of herself, on her Myspace page.

In Marshall v. Mayor of Savannah (February 17, 2010), a former female firefighter filed a lawsuit against the Savannah Fire Department alleging gender discrimination and retaliation after she was terminated from her job.  In response, the Fire Department stated that the plaintiff (who was a probationary trainee at the time) was terminated because she posted pictures related to her fire department, including photographs of her co-workers in uniform, on Myspace.  Before terminating her employment, the firefighter’s supervisor ordered the plaintiff to remove the photographs from her Myspace page, but she refused. The firefighter claimed that male firefighters also posted pictures of the fire department on their Myspace pages, but she did not disclose their names when asked.  After she refused to remove the pictures from her Myspace page, the firefighter’s employment was terminated, in part due to her “denial of violation of Fire Department policy, disrespect toward administration and Chief Officers.”  The firefighter then filed her lawsuit.

The district court granted the Fire Department summary judgment on the firefighter’s claims, and the Eleventh Circuit Court of Appeals upheld the district court’s decision.   In its decision, the appellate court noted that the record contained no evidence of male firefighters who were on probationary status, denied alleged violations of the Fire Department’s policies, disobeyed direct orders of the Chief Officers, or showed disrespect to their superiors.  Therefore, the plaintiff’s claims failed because did not establish she was treated less favorably than male firefighters who were “similarly situated in all relevant respects.”