Workplace Dating and Third-Party Retaliation

“Don’t dip the pen in company ink.”  “Don’t get your honey where you make your money.”  “Don’t catch your fish off the company pier.”  There are a number of commonly used expressions that warn of the potentially negative consequences of dating a co-worker.  Generally, these sayings hint at the awkwardness that could arise if a workplace romance ends on unfavorable terms.

Until recently there was a much less known risk to engaging in a workplace romance.  This risk involved protection, or lack thereof, under §704(a) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a).  Under the subsequently overturned holdings of many circuit courts that interpreted Title VII, if an employee filed a discrimination charge against their employer, her spouse or fiancée that worked for the same employer would not be protected, as she is, from any resulting retaliation.  The law changed on January 24, 2011, when the United Stated Supreme Court decision in Thompson v. North American Stainless, LP (No. 09-291, Jan. 24, 2011) made it so an employees’ spouse or fiancée (among others) would be protected from subsequent retaliation in such a situation.

Background

Eric L. Thompson was employed by North American Stainless as a metallurgical engineer in its stainless steel manufacturing facility in Kentucky.  In 2000, while he was working at North American Stainless, the company hired Miriam Regalado.  Thompson and Regalado met soon after, and began dating.  After dating for a while, the two decided to get engaged.  It was common knowledge at North American Stainless that Thompson and Regalado were in a relationship.

In September 2002, Regalado filed a charge with the Equal Employment Opportunity Commission (“EEOC”), alleging that her supervisors discriminated against her based on her gender.  On Feb. 13, 2003, the EEOC notified North American Stainless of this charge. On March 7, 2003, the company terminated Thompson’s employment.  Thompson alleged the termination was in retaliation for Regalado’s EEOC charge, while North American Stainless contended the termination was performance-based.  Thompson responded by filing a retaliation claims under Title VII against North American Stainless.

In the subsequent lawsuit filed in federal court, North American Stainless moved for summary judgment on Thompson’s retaliation claim, arguing that Title VII does not recognize any “third-party” retaliation claim of the type Thomson had articulated.  The court ruled in favor of North American Stainless.  Thompson appealed the decision to the Sixth Circuit Court of Appeals. A panel of judges on the Sixth Circuit initially reversed the lower court decision, but after a rehearing en banc, the full circuit affirmed the lower court decision.  The circuit court held that the anti-retaliation provisions of Title VII did not protect Thompson because he did not personally engage in protected activity on his own behalf or on behalf of his fiancée.

The Supreme Court Decision

In making its decision, the Court looked at whether Thompson’s termination by North American Stainless constituted unlawful retaliation, and if so, whether Thompson had a cause of action under Title VII.

In answering the first question, the Court stated, “a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancée would be fired.”  The Court stated it had no difficulty coming to this conclusion, especially given its previous decisions construing Title VII’s anti-retaliation provision to “cover a broad range” of employer misconduct.

In answering the second question, the Court looked at whether Thompson was a person “claiming to be aggrieved” – the applicable legal standard under Title VII. The Court’s decision hinged on the meaning of “aggrieved.”  The Court held that Congress did not intend the term to apply only to the person directly discriminated against (in this case, Regalado).  Rather, because “the purpose of Title VII is to protect employees from their employers’ unlawful actions,” and because Thompson, like his fiancée, was an employee of North American Stainless, he was within the “zone of interests” Congress intended Title VII to protect.

For these reasons, the United States Supreme Court reversed the decision of the circuit court, holding that Title VII’s ban on workplace retaliation against an employee who challenges discrimination also protects a co-worker who is a relative or close associate of the targeted employee.

Conclusion

For employers, the decision in Thompson v. North American Stainless LP serves as a reminder of the importance of establishing and documenting the nondiscriminatory and non-retaliatory bases for all terminations.  For employees, it removes one potential risk of engaging in a workplace romance.  Unfortunately, it does not remedy the risk of having to one day see your ex-girlfriend everyday at work.

Aman Syed recently received his J.D. from The Ohio State University Moritz College of Law. He was previously a Summer Associate at the Columbus, Ohio office of Vorys, Sater, Seymour and Pease LLP. Mr. Syed can be contacted at aman49@gmail.com.