Last May I wrote this post on retaliation. It is becoming yet a bigger and bigger issue. Attorney after attorney tell their clients that these cases are difficult to defend. According to attorney Robert Shea “…it seems claimants and their attorneys have come to realize that retaliation claims are different than typical discrimination claims and that retaliation claimants, in general, are more likely to prevail at trial and recover significant damages. Simply put, juries more receptive to retaliation claims than typical discrimination claims.” Source: Why Retaliation Claims Are on the Rise and What Employers Can Do About It
Many smaller company management teams are not aware that retaliation against someone for filing a claim of discrimination is as bad as the original discrimination. Most larger companies are aware of that, at least the HR people are. However, even larger company HR people may not be aware of how far the “net” of retaliation protection is now cast. Everyone needs to know this.
In a Supreme Court decision earlier this year the definition of who is protected from retaliation just got broader. The case of Thompson v. North American Stainless, LP provided us with this new broader definition. Here are the facts of the case in brief. Miriam Regalado and Eric Thompson worked together at the company. They started dating and later became engaged, a fact widely known throughout the organization. At one point Ms. Regalado filed a charge with the EEOC claiming gender discrimination by her supervisor. Three weeks after the company received the discrimination charge Mr. Thompson, the fiancé, was fired. No action was taken against Ms. Regalado. Mr. Thompson then files a claim of retaliation. In review his case the lower court said he had no claim. He had not engaged in any protected activity and thus had no claim. They even said that even if his fiancé’s EEOC claim was the basis for his firing he still had no basis for a lawsuit.
The Supreme Court was then presented with the question “Does Title VII forbid an employer from retaliating for such activity by inflicting reprisals on a third party closely associated with the employee, such as a spouse, family member or fiancé?” The Supreme Court’s response was that Title VII does indeed prohibit action that “might well dissuade a reasonable worker from making or supporting a charge of discrimination.” In other words if your employees knew that you might punish a family member or fiancé if they filed a charge with the EEOC they might be less likely to engage in a right they have.
The Supreme Court said that Mr. Thompson was protected from retaliation because he fell in the “zone of interests” that was protected by Title VII. It was well known that he was her fiancé. The court fell short of providing a clear definition of what that “zone of interest”. Obviously a family member is clearly covered but an acquaintance seldom. That leaves a great deal of gray area in between.
The lesson I see in this is that retaliation on claims of discrimination is just a big NO-NO. Before you enter into disciplinary action against an individual with a clear relationship with someone who has filed a claim against the company make sure of the reasons you are conducting discipline. If it is to send a message, rethink your actions. If it is truly performance based then make sure you have ALL your documentation in proper order. Because if you don’t you will see court action on it and may very likely lose.
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