Lessons From the Recent Supreme Court Retaliation Decision

Just a quick note about the recent Supreme Court opinion in Thompson v. North American Stainless, LP, wherein the Court held that the fiancé and coworker of someone who filed a discrimination claim has standing to file his own retaliation claim: was anyone truly surprised by the result?  I ask this because, if the allegations in the case are true, the anti-retaliation provision of Title VII would be a complete joke if the Court had held that the fiancé had no standing to sue for retaliation.  Think about it: if you were an employer wanting to send a chilling message to an employee that filed a complaint against you, and you knew that it is unlawful to retaliate against them directly, you might decide to discipline or terminate their closest friends on the job instead.  Better yet, how about one of their family members that also works for you? Or, let’s say, a fiancé!  How absurd would the law be if it prohibited you retaliating directly against the filer of a discrimination claim against you, but permitted you to punish their fiancé, close friend, or family member? To be clear, it was certainly possible for the Court to reach a different conclusion, considering the statutory analysis that was to be done (look at the Circuit Court decision).  However, I guess my main point is that employers should try to avoid putting themselves in the position of having to make these types of arguments in the first place, as I will discuss below.

While reaching the only conclusion that wouldn’t make a mockery of the law, the Court refused to specifically list the types of close relationships, besides fiancé and close family members, that would have standing in similar retaliation cases.  This raises legitimate concerns for employers that find themselves in a position where they are contemplating disciplining anyone after an employee files a complaint.  I’ll get back to this point later, but first I want to talk about certain behavior that often arises in these types of situations.

The urge for some employers to “strike back” when they feel that an employee has filed a baseless  charge against them with the government, or grievance with their union, can sometimes be very difficult for them to resist.  It can get to the point where rational thought gets drowned out by the desire to ‘do something’ to reciprocate the discomfort the employee has caused by the filing of their complaint/charge.  This is especially true when the employee is perceived by the employer to be a poor performer in general, or even a troublemaker. Under the circumstances, this feeling is understandable. However, when an employee has filed a complaint/grievance against their employer it is imperative that the employer step back, exhale, and carry on as if no complaint had been filed.  It is not the time for hastily addressing any issues with that employee, unless they have done something clearly egregious (i.e., stealing, drug use, fighting, etc.).  It is certainly not the time to penalize them for any minor infractions that you would normally otherwise ignore.  And as the Supreme Court just made clear, it is also not the time to strike out at any of their close co-workers or family members.  Instead, it is the time for objectivity, and for listening to the advice of human resources and labor & employment law counsel.   This brings me back to the point regarding the types of relationships an employer can expect to have standing in a retaliation case.

In its decision, the Supreme Court offered only this as guidance to employers who are trying to determine which relationships may have standing in similar retaliation cases:

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 . . . .

See page 4 of the decision.  Therefore, if an employee has filed a charge or complaint against his/her employer and the employer wants to take action against another employee, it stands to reason that the first thing the employer should do is to try to determine the family relationships that exist within its workforce.  Many employers already have policies requiring employees to disclose their family ties with coworkers to their employer.  Beyond family ties, employers will have to rely on their managers and supervisors in reporting back which employees are close friends versus mere acquaintances.  Above all, considering the minefield deciphering the relationships between employees can be in light of the Supreme Court decision, it is important for the employer to question why they want to issue the particular type of reprimand they are contemplating, to the particular employee at that specific time.  Again, this is where objectivity is a must, and is a good time to consult with an independent-minded human resource staff member, and experienced labor & employment counsel. Considering the fact that last year saw, for the first time ever, retaliation complaints exceed all other kinds of complaints filed at the EEOC, it would appear that not enough employers are consulting with, and following the advice of, experienced labor & employment counsel.

At Reid Kelly, P.C., we make it easy for our business clients to decide to call us.  While we can make a lot more money by waiting for our business clients to get sued and then represent them in court, we choose instead to press our business clients to call us proactively and explore the issues before taking action.  Our HR Phone Consultation Package allows them to call us on an ongoing basis for a flat price, allowing for predictable billing and cost control.  The old adage that an ounce of prevention is worth a pound of cure certainly rings true here.

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