By Trenten D. Klingerman
On Jan. 24, 2011, the U.S. Supreme Court issued its opinion in Thompson v. North American Stainless, LP, 131 S. Ct. 863 (Jan. 24, 2011). Thompson is the most recent in a trilogy of Supreme Court retaliation cases. Beginning with Burlington Northern & Santa Fe Railway Co. v. White, 537 U.S. 52, 126 S. Ct. 2405 (2006), and continuing through Thompson, a clear pattern has emerged. The recent Supreme Court retaliation jurisprudence has incrementally but consistently expanded the scope of retaliation protections under section 704(a) of the Civil Rights Act of 1964 (“Title VII”). 42 U.S.C. § 2000e-3(a). The trend requires that employers take notice and that defense counsel understand the trilogy of cases and the limits of the expansion.
The first case in the retaliation trilogy was Burlington Northern, in which the court determined the scope of conduct that could be deemed an “adverse action” under Title VII’s retaliation provision. Sheila White was a track laborer who was primarily assigned to operate a forklift – a job that she considered preferable to other, more arduous track laborer tasks. Several weeks after White began working, she complained that her supervisor had repeatedly said that women should not be working as track laborers and had made insulting and inappropriate remarks to her. The employer investigated White’s claims and suspended her supervisor and ordered him to attend sexual harassment training. Almost immediately after White’s supervisor’s suspension, White was removed from forklift duty and assigned to perform dirtier, more physically demanding jobs. She also alleged that her employer had “placed her under surveillance and was monitoring her daily activities.” White then filed a series of EEOC complaints, alleging that her assignment was retaliatory and discriminatory. Shortly thereafter, she was suspended for insubordination.
Following a jury verdict for White, Burlington Northern appealed, arguing that there was too tenuous a link between White’s employment and the adverse actions that she alleged. The Supreme Court ultimately granted certiorari to resolve a circuit split and to resolve the issue of “whether Title VII’s anti-retaliation provision forbids only those employer actions and resulting harms that are related to employment or the workplace.” Burlington Northern, 548 U.S. at 61, 126 S. Ct. at 2411.
The court concluded that the objectives of Title VII’s anti-retaliation provision were (1) to prevent discrimination in the workplace and (2) to prevent an employer from interfering with an employee’s efforts to enforce Title VII. The court concluded that the objective of preventing interference could not be secured if courts were to focus only upon harm that concerned employment and the workplace. Thus, it held that a Title VII retaliation plaintiff need not establish that the alleged adverse action was related to terms, conditions, or benefits of employment. Rather, the plaintiff must establish that “a reasonable employee would have found the challenged action materially adverse.” Burlington Northern, 548 U.S. at 68, 126 S. Ct. at 2415.
The second case in the retaliation trilogy, Crawford v. Metropolitan Government of Nashville and Davidson County, 129 S.Ct. 846 (2009), marked another incremental expansion of Title VII’s retaliation protections. In that case, Vicky Crawford, a 30-year employee of the defendant’s school district, answered questions about a school administrator during the course of the defendant’s internal sexual harassment investigation. Crawford told the defendant’s human resources officer of four instances of inappropriate behavior by the administrator who was under investigation. Crawford and two other employees who accused the administrator of inappropriate conduct were fired shortly after the investigation concluded. The administrator was not disciplined.
Section 704(a) of Title VII comprises two anti-retaliation provisions. The “opposition clause” protects an employee who has “opposed any practice made an unlawful employment action” under Title VII. The “participation clause” protects an employee who “has made a charge, testified, assisted or participated in any manner in an investigation, proceeding or hearing” under Title VII. Crawford sued her employer for retaliation under Title VII, claiming that she was terminated because she cooperated in the internal investigation. Crawford argued that her termination violated both the opposition and the participation clauses.
The trial court granted the employer summary judgment, which was affirmed by the Sixth Circuit. Both lower courts held that Crawford’s cooperation with the internal investigation was insufficient to trigger either the “opposition” or “participation” clause. The lower courts held that merely answering questions posed by an internal investigator was not the type of active, consistent opposition demanded by § 704(a).
The Supreme Court concluded that failing to protect an employee who reports discrimination in response to an employer’s questions was contrary to the court’s Ellerth and Faragher decisions, which created an incentive for employers to conduct internal investigations to correct discriminatory activities. The court noted that failing to protect the employees who cooperate in internal investigations could provide employees with a “good reason to keep quiet about Title VII offenses,” which is contrary to Title VII’s primary objective of preventing workplace discrimination. Thus, the court held that Crawford’s report of discrimination in response to her employer’s questions was protected by the opposition clause.
While many commentators opined that the Burlington Northern and Crawford expansions would create traps for unwary employers and create a groundswell of new claims, those of us who defend employers primarily in the Seventh Circuit rested easier knowing that the court had essentially adopted the analysis already used by most courts in our circuit. See, e.g., Washington v. Illinois Dept. of Revenue, 420 F.3d 658, 662 (7th Cir. 2005) (finding an action is adverse if it would have dissuaded a reasonable worker from making a charge of discrimination); McDonnell v. Cisneros, 84 F.3d 256, 262 (7th Cir. 1996) (recognizing a “passive opposition” retaliation claim). The final case of the retaliation trilogy does mark a departure from existing Seventh Circuit precedent and could represent an expansion of Title VII retaliation claims.
In Thompson v. North American Stainless LP, the plaintiff, Eric Thompson, and his fiancée, Miriam Regalado, were both employees of North American Stainless (“NAS”). Regalado filed an EEOC charge against NAS, alleging sex discrimination. NAS fired Thompson three weeks after it received notice of Regalado’s charge. Thompson then filed his own EEOC charge and ultimately sued NAS for retaliation under Title VII. Thompson alleged that NAS fired him in order to retaliate against Regalado for filing her charge. The district court granted summary judgment, concluding that Title VII did not permit “third-party” retaliation claims. The district court was reversed by a panel of the Sixth Circuit, but later affirmed by the Sixth Circuit en banc.
The Supreme Court reviewed the case to determine whether NAS’s firing of Thompson constituted unlawful retaliation and, if it did, whether Title VII granted Thompson a cause of action. The court cited Burlington Northern in noting that it would broadly construe Title VII’s anti-retaliation provision. Finding it “obvious” that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired, the court had no trouble holding that Thompson’s firing constituted unlawful retaliation. The court refused to identify a fixed class of relationships that could fall within the third-party retaliation scheme, noting only that “firing a close family member will almost always meet the Burlington standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so … .” Thompson, 131 S. Ct. at 868.
The second question – whether Title VII granted Thompson a cause of action – was more difficult. Title VII provides that a claim may be brought “by the person claiming to be aggrieved.” 42 U.S.C. § 2000e-5(f)(1). The court rejected the argument that the “person aggrieved” provision of Title VII should be read as coextensive with Article III standing. The court explained that an expansive injury-in-fact rule would lead to absurd consequences, such as a shareholder filing a Title VII claim alleging diminution in stock value against a company that fired a valuable employee for discriminatory reasons.
The court also rejected a narrow construction of the “person aggrieved” provision, under which only employees who engaged in protected activity could bring a Title VII action. Noting that there was no textual support for the narrow construction, the court found “no basis in text or prior practice for limiting” the “person aggrieved” provision to employees who engaged in protected activity.
Instead, the court adopted a “zone of interests” test to determine standing in Title VII cases. The test requires a court to find standing if the plaintiff can establish that he falls within the zone of interests sought to be protected by Title VII. Standing would not be found if the plaintiff’s interests were only “marginally related to or inconsistent with the purposes” of the statute.
The court then found that Thompson was an employee of NAS who was fired in order to harm Regalado. Given that the purpose of Title VII is to protect employees from employers’ unlawful actions, the court concluded that Thompson was within the zone of interests and, therefore, a person aggrieved under Title VII.
Before Thompson was decided, retaliation claims were already on the rise. From fiscal year 1997 through fiscal year 2010, the number of retaliation claims filed nearly doubled, growing from 18,198 to 36,258 claims per year. There is little doubt that the number of claims will continue to increase following Thompson.
The retaliation trilogy of cases requires employers, and those advising them, to be mindful of the risk of retaliation claims. These risks now include actions taken within and outside the workplace; whether directly related to employment or not. The risk of a retaliation claim also extends to employees who have not actively opposed discrimination or who may not have engaged in any protected activity at all.
For employers, the message is clear: when making the decision to take an adverse action against an employee, always insure that there is a legitimate business reason for the action. Employers must also consider similarly situated employees to check whether policies and procedures are administered uniformly. A review of existing policies and procedures to make sure they provide adequate admonitions and protections against retaliation is a good idea. It is equally important to train frontline supervisors on the importance of documenting employee performance and discipline, and of the risks involved in retaliatory behavior.
For counsel representing employers, it is important to understand the limits of the retaliation trilogy. The standard enunciated in Burlington Northern is an objective standard: that an adverse action would have been a material deterrent to a reasonable employee. Petty slights and immaterial, everyday challenges are unlikely to rise to the level of an actionable predicate to a retaliation claim.
While Crawford permits passive opposition (i.e., answering questions), it is still clear that some form of action is required to fall within the opposition clause. Silence is not protected activity. Also, the employee must prove that the employer knew of his opposition and that the opposition activity caused the adverse action.
Thompson also has limits. While the court did not articulate a meaningful rule regarding third-party retaliation claims, it did provide some guidance. It seems clear that mere colleagues or work acquaintances would not fall within a zone of interests articulated by Thompson. Thompson leaves open arguments regarding relationships that fall along the continuum that starts with acquaintances and ends with fiancés. Counsel should continue to monitor lower courts’ application of the trilogy, which will no doubt continue to shape the analysis of evolving retaliation standards.•
Mr. Klingerman is a partner in the Lafayette firm of Stuart & Branigin and chairs the DTCI Employment Law Section. The opinions expressed in this article are those of the author.