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Supreme Court Recap: Creating a “Zone of Interest” Under Title VII Retaliation Law

Posted in Discrimination & Harassment, Litigation

The United States Supreme Court today, in an 8-0 decision (Justice Kagan recused herself), ruled that Title VII retaliation provisions include protection to those people who have suffered an adverse employment action and are in the same "zone of interest" as another employee who filed a charge.  

What does that mean? Good question.  First, the facts.

The case, Thompson v. North American Stainless, LP,  has a fairly straightforward claim. In 2003, Eric Thompson and his fiance, Miriam Regalado were employees of North American Stainless. In February 2003, Regalado filed a charge with the EEOC alleging sex discrimination. Three weeks later, NAS fired Thompson.  

The Court said that the anti-retaliation provisions of Title VII prohibit employer conduct that "well might have dissuaded a reasonable worker from making a charge of discrimination".  Therefore, the court said it was "obvious" that a "reasonable worker might be dissuaded from engaging in protected activity if she knew her fiance would be fired".  But who else might be covered.  

The question the court had to consider was: Is it possible that Regalado had a claim of retaliation?The court answered that yes.

But unfortunately, in doing so, the court left it to the lower courts to define the parameters as to who else might be included in the victim’s "zone of interest".  It did give some clues: 

We expect that firing a close family member will almost always meet the [] standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize.  

The court went on to say that the the text of Title VII’s anti-retaliation provisions are "simply not reducible to a comprehensive set of clear rules."  In other words, its a case-by-case determination.

Oh, and good luck.  

Why is this case important for employers?

1) As I mentioned earlier this month, retaliation claims are already the number one type of claim filed at the EEOC. This decision will only broaden the scope of people who may raise the claim.  Anyone within the "zone of interests" of the original victim may now have a claim — even if they did nothing to participate in the original claim.  

2) Being in the "zone of interest" isn’t an automatic, however. As the Employer Handbook blog points out this evening, the court assumed that the company fired the employee because his fiance complained to the EEOC. But if the company can show that the decision was made prior to learning about the EEOC charge or that the employee had other issues, the employer may still fire the employee.  

3) As a result, employers who are going down the road of termination, should inquire of the supervisors whether there is any relationship between that employee and any other who has brought a claim of discrimination.  As GT LE Blog highlights, this may force employers to be even more intrusive into the personal lives of employees.  

What else have other attorneys said about the decision?

Employers probably didn’t need another reminder that the potential claims they face are only limited by the imagination of plaintiffs’ attorneys. Before an employer takes any disciplinary action against anyone, it must ensure that it has legitimate business reasons for doing so and that an improper reason – such as a desire to exact revenge on another employee – hasn’t infected the decision.