We're All in a Protected Class Now

In a decision handed down Jan. 24, 2011, the United States Supreme Court took another step toward the establishment of a national "just cause" standard by broadly interpreting the anti-retaliation provisions contained in Title VII of the Civil Rights Act of 1964 to include roughly everybody and his brother – or in this case, everybody and her fiancé.

In Thompson v. N. Am. Stainless LP, an employee filed suit under Title VII alleging that his employer had terminated him because his fiancé had filed a charge of sex discrimination against the same employer less than a month earlier. The question presented to the Supreme Court was whether the anti-retaliation provisions of Title VII extended so far as to include not just the individuals who engaged in protected activity themselves, but also other employees who have some relationship with the complaining employee.

The Supreme Court answered this question with an unequivocal yes, holding by an 8-0 count that the scope of Title VII's anti-retaliation provisions extends beyond the individual who registered the complaint of discrimination to include "third party retaliation claims." The test identified by the Supreme Court was whether the employer's action against the third party "well might have dissuaded a reasonable worker from making or reporting a charge of discrimination."

Writing for the Court, Justice Scalia acknowledged the "difficult line-drawing problems" concerning which relationships would fall within the scope of Title VII's anti-retaliation protections, asking hypothetically, "Perhaps retaliating against an employee by firing his fiancée would dissuade the employee from engaging in protecting activity, but what about firing an employee's girlfriend, close friend or trusted co-worker?"

Unfortunately, Justice Scalia's answer to the question served only to muddy the waters further for employers attempting to navigate this new holding: "We expect that firing a close family member will almost always meet the Burlington standard [for proving retaliation], and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize."

This decision is expected to add to the backlog of retaliation claims filed with the United States Equal Employment Opportunity Commission (EEOC), which already represented the single highest category of charges filed with the EEOC. For 2010 alone, the EEOC reports receiving 36,258 retaliation charges, ahead of race discrimination charges at 35,890.

The Supreme Court's holding in Thompson is significant both because of its expansion of Title VII's anti-retaliation provisions and the corresponding erosion of the employment at-will doctrine represented by this and other recent court decisions and legislative enactments in the recent past. If not dead, employment at will is certainly on life support as a result of these developments, as it will be rare that a terminated employee will have no potential claims to make.

How should informed employers respond to this continued erosion of employment at will? Our advice is for employers – whether union or non-union, public or private, located in an "at will" state or otherwise – to take the opportunity to audit their disciplinary procedures and practices to make sure that reliance on the employment at will doctrine is unnecessary. Specifically, employers should take steps to ensure that they:

· Clearly communicate their expectations for performance and behaviors to their employees in an employee handbook or written policies;

· Properly document their personnel actions by giving employees periodic written feedback on their performance and by documenting disciplinary actions in the employee's personnel file;

· Consistently enforce their policies and work rules so that no employee can claim he or she was singled out for discriminatory or retaliatory treatment; and

· Eliminate ambiguities by informing employees (preferably in writing) of the specific reason for termination or other adverse employment action.

Employers who take these steps will be better positioned not only to minimize the risk of getting sued in the first place, but also to defend themselves against those employment claims that do get filed by demonstrating that their decision was made for legitimate reasons other than discrimination or retaliation.

If you would like assistance in auditing your disciplinary procedures and practices, please contact Michael Tooley or any member of Ice Miller's Labor and Employment Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice.  The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.