On December 7, 2010, the U.S. Supreme Court will hear oral argument in Thompson v. North American Stainless, LP (U.S. Sup. Ct., Case No. 09-291), which presents the question of whether § 704(a) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a) (PDF), creates a cause of action for third-party retaliation for persons who have not personally engaged in protected activity. In a divided 10-6 en banc decision back on June 5, 2009, the Sixth Circuit held that § 704(a) does not create such a cause of action. See Thompson v. North American Stainless, LP (6th Cir., Case No. 07-5040) (en banc) (PDF). As we previously reported, the U.S. Supreme Court granted cert in this case on June 29, 2010. See Supreme Court News from Last Day of OT 2009.
Though the facts in Thompson are simple, they have raised complex legal issues. Eric Thompson claims that his employer terminated him in retaliation for his then-fiancée (and fellow co-worker) filing a charge with the Equal Employment Opportunity Commission (EEOC) claiming that her supervisors had discriminated against her because she was a woman. North American Stainless fired Thompson a little over three weeks after it learned of the charge from the EEOC. Thompson alleges that his former employer terminated him solely because of his fiancée’s protected activity, in violation of the anti-retaliation provision in Title VII.
Section 704(a) of Title VII forbids an employer from retaliating against an employee because he or she engaged in certain protected activity. As LawMemo Employment Law Blog highlights, the two key issues before the Supreme Court in Thompson are whether § 704(a) forbids an employer from retaliating for such activity by inflicting reprisals on a third party (such as a spouse, family member, or fiancée) closely associated with the employee who engaged in such protected activity, and, if so, whether that prohibition may be enforced in a civil action brought by the third party victim.
The United States previously filed an amicus brief recommending denial of the cert petition. See Brief for the United States as Amicus Curiae (PDF). It pointed out that the Sixth Circuit’s en banc decision in Thompson is consistent with the Third, Fifth, and Eighth Circuits, which have concluded that plaintiffs in Thompson’s position cannot pursue retaliation claims under Title VII. Despite the apparent uniformity among the circuits, the U.S. Supreme Court has agreed to hear the case.
Not surprisingly, Thompson is being watched closely by employers and other employment law observers. As the Kentucky Employment Law Letter notes, the Thompson case reflects how an employer can be exposed to litigation from disgruntled fired employees who are willing to challenge the limits of federal law.