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Retaliation case arguments considered by high court

Workplace romances can be perilous in the best of circumstances.

But when an employee is fired after his sweetie files a discrimination complaint against the company, can he sue for retaliation under Title VII?

The justices of the U.S. Supreme Court debated that issue during Dec. 7 oral argument in Thompson v. North American Stainless.

The case stems from a complaint filed with the Equal Employment Opportunity Commission by a female employee alleging gender discrimination by her supervisors. The employee was engaged to the plaintiff, fellow employee Eric Thomson, and their relationship was common knowledge at the company.

Three weeks after the EEOC notified the company of the discrimination charge, Thompson was fired. He sued for retaliation under Title VII, claiming that the sole factor in his termination was his relationship with his fiancée.

The company successfully moved for summary judgment, arguing that Title VII’s retaliation provision applies only to an employee who personally engaged in protected activity.

In a 2-1 ruling, a 6th Circuit panel disagreed, allowing the suit to proceed.  But the en banc court reversed, holding that while the substantive provisions of Title VII prohibit discrimination based on an employee’s status, the retaliation prohibition protects only what employees do. Since the actions of the fiancée and not the plaintiff were at issue, he could not sustain a retaliation claim, the court ruled.

The Supreme Court granted certiorari.

Need for a clear line?

During oral arguments, Eric Schnapper, a professor at the University of Washington School of Law in Seattle, argued on Thompson’s behalf that Title VII’s retaliation prohibition is “easily applicable to a situation where you single out, say, a family member or a fiancée.”

Justice Ruth Bader Ginsburg wondered if the plaintiff was seeking to do something that Title VII simply does not provide for.

“The Americans with Disabilities Act has an explicit provision that allows suits by adversely affected close relatives,” Ginsburg said. “You are essentially asking us to read that provision” into Title VII.

“That [ADA] provision [is] directed at a very different problem [of] employers who might refuse to hire a worker because, for example, he had or she had a child with a disability,” Schnapper replied.

“But the Fair Housing Act has a definition of injury that would include Mr. Thompson, and that’s not in this Act either,” noted Justice Sonia Sotomayor.

Justice Samuel Alito wondered if extending Title VII’s retaliation protections to someone who did not complain of — discrimination would start a trip down a slippery slope.

“That’s what’s troubling to me about this theory,” Alito said. “Where it’s a fiancé — that’s a relatively strong case. But I can imagine a whole spectrum of cases in which there is a lesser relationship between those two persons, and unless there’s a clear line there someplace, this theory is rather troubling.”

“The standard in Burlington Northern — no offense — isn’t a bright line,” Schnapper replied, referring to the 2006 ruling in Burlington Northern and Santa Fe Railway Co. v. White where the Court held that whether a plaintiff can sue for retaliation “depends upon the circumstances of the particular case,” and “should be judged from the perspective of a reasonable person in the plaintiff’s position.”

Leondra R. Kruger, acting principal deputy solicitor general, argued as amicus in favor of Thompson. She picked up on that point.

“I don’t think there’s any reason for the Court to try to fashion a hard and fast rule that identifies some relationships that are close enough and others that aren’t,” Kruger said.

“Very good friends is enough?” asked Alito.

“I think that a reasonable employee who knows [that] their best friend at work is going to be fired may be deterred from engaging in protected activity,” Kruger replied.

Who gets ‘kid gloves’?

Leigh Gross Latherow, a partner at VanAntwerp, Monge, Jones, Edwards & McCann in Ashland, Ky., argued for the employer, North American Stainless.

“The concerns from the employment side in this case are substantial,” Latherow said. “Under [the plaintiff’s] theory of the case, anyone who … is aggrieved… becomes a protected party.”

She said Thompson’s fiancée could have brought a cause of action under Burlington, even though she was not the one who was fired.

But Scalia wondered what difference that would make – employers may still find themselves unsure of what adverse action could lead to a lawsuit.

“If you concede that she could have sued, then what’s the big deal?” Scalia said. “We still have the same problem: that the employer doesn’t know whom he has to treat with kid gloves.”

Justice Anthony Kennedy was in search of a rule to carve out.

“So, if an employer said: ‘if anybody makes a discrimination claim, we’re going to fire two other employees just to show you that we run an efficient corporation here,’ you say that that is proper or improper?” Kennedy asked.

“It’s improper, because the person who was discriminated against would have the right to sue,” Latherow said.

“In this World War II Nazi scenario,” Justice Antonin Scalia began, “why would the woman who caused the random firing, why would she bring a lawsuit if these people are really nothing to her? She just has a guilty conscience or something? I mean, if it’s her fiancé, maybe, but she may not even like the people.”

“She may not, but the EEOC could,” Latherow said.

Justice Elena Kagan did not participate in the consideration of the case.

A decision from the court is expected later this term.

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