The Supreme Court Hears Arguments on Third-Party Retaliation Claim
By Scott Inciardi
What if an employee claims to be the victim of retaliation not because he or she filed a charge of discrimination or participated in an investigation, but because of his/her “close association” with another employee who did? Would such an employee have a claim under Title VII? This was the question debated in the Supreme Court of the United States earlier this month.
Under Title VII of the Civil Rights Act of 1964, the principal federal law prohibiting workplace discrimination, an employer may not retaliate against an employee for engaging in certain “protected activity,” including filing a charge with the EEOC or opposing workplace discrimination. In the Supreme Court case, Mr. Thompson was a former employee who conceded he personally had engaged in no protected activity. However, he claimed that his employer terminated him because his fiancée, who worked for the same employer, had filed a gender discrimination charge with the EEOC. Mr. Thompson claimed he had been retaliated against in violation of Title VII. A federal appeals court concluded that Mr. Thompson had no claim because he himself had not engaged in protected activity. Mr. Thompson sought review before the Supreme Court where oral arguments were heard on December 7, 2010. (The transcript and audio recording of the arguments are available at http://tinyurl.com/2uytgg9.)
Mr. Thompson and the U.S. Department of Justice argued that Title VII protected him, even though he engaged in no protected activity himself, if the employer intended to retaliate against someone to whom he was close. Several Justices, however, seemed dubious, at best. Justice Alito found Mr. Thompson’s theory “rather troubling” and questioned whether an employer, before terminating an employee, would have to examine all the employee’s relationships to see if anyone “close to” the employee had recently engaged in protected activity. Justices Alito and Roberts also wondered how close the relationship between two employees would have to be to support such a claim — would close friends be enough?
When the Supreme Court issues a decision in this case, it will likely resolve a split among the federal circuit courts on the issue of third-party retaliation. Four of the courts (the Third, Fifth, Sixth, and Eighth Circuits) have rejected third-party retaliation claims where the employee did not personally engage in protected activity. The Seventh and Eleventh Circuits, however, appear to recognize retaliation claims under such circumstances. The EEOC also takes this position.
Until the Supreme Court clarifies this issue, employers should exercise caution when disciplining employees who are known to be close to other employees who have made discrimination complaints or engaged in other protected activity, particularly given that the EEOC will enforce such retaliation claims. Furthermore, regardless of the outcome of the Thompson case, an employee who opposes discrimination continues to be protected from retaliation, even if he or she is opposing alleged discrimination against another employee. Of course, employers remain free to discipline and terminate employees based on legitimate non-discriminatory reasons.
Workplace Harassment — A Reminder
By Richard M. Albert
Given the widespread availability of electronic means of communication in many workplaces — which has made it easier for employees to transmit communications that others might find unwelcome and offensive — employers must be ever aware of harassment issues. As a result, employers should familiarize themselves with some basic concepts that apply when confronted with a claim of workplace harassment. While each harassment claim warrants its own specific investigation and determination based on all the particulars involved, the following guidelines provide a good framework for dealing with these situations.
Deal with a complaint of workplace harassment immediately. No matter what the specifics of the claim may be and no matter who is allegedly involved, any claim of this sort must be sorted out as soon as possible. Delay may worsen the situation and may expose the employer to greater potential liability.
Decide who is going to conduct the investigation into the employee’s claim. The main investigator must be someone with unquestioned credibility, who has no stake whatsoever in the eventual investigation outcome. In certain circumstances, employers may be well advised to retain the services of an investigator who does not work for the organization and has no prior relationship of any kind with the organization, in order to ensure maximum neutrality.
Interview any and all witnesses who may have any knowledge about the situation. Ordinarily, the first individual interviewed should be the complaining employee. The employee should be questioned at length about all relevant facts, documents, and potential witnesses. Other witnesses, most definitely including the alleged harasser, should be similarly interviewed. It may be necessary to interview either the complaining employee or others multiple times in order to inquire about information received from other witnesses. All who are interviewed should be assured that the information they provide will be maintained as confidentially as is possible. Depending on the circumstances, employers should consider having those interviewed confirm their statements in writing. All witnesses also should be told that they will not be retaliated against for participating in good faith in the investigation and also told they should let the employer know right away if they feel retaliated against in any way.
The employer should consider to what extent, if at all, it wants to attempt to maintain the investigation results as attorney-client privileged. This issue should be discussed with counsel at the commencement of the investigation.
When all reasonable steps have been taken to obtain all available facts related to the claim, the employer needs to reach a written conclusion of some kind. Even if the employer’s conclusion is that it is simply unable to conclude whether or not harassment occurred, it must affirmatively reach some kind of result. If the employer does conclude that inappropriate conduct occurred, appropriate action must be taken commensurate with the particular facts of the situation. Such action should be taken promptly after the investigation is completed.
Close the loop with the complaining employee. Whatever the investigation results may be, the employer should share those results, at least in general terms, with the complainant. Any action taken as a result of the investigation should also be shared with the complainant. Finally, the complainant (as with all participants in the investigation) should be assured that there will be no retaliation of any kind arising out of a good-faith complaint, and that he or she should report any additional difficulties to management immediately.
