Imagine a vindictive employer – angry at an employee who recently filed an EEOC charge, but smart enough to know not to fire the employee in retaliation for filing the claim. How is this vindictive boss to take out his frustration without making matters worse? If you are North American Stainless, you fire the employee’s fiancée!
What an evil twist. You didn’t do anything to the employee who filed the claim. You didn’t do anything to a person who supported a protected action. You live in an “at-will” state so you can fire the fiancée without a reason. You should be in the clear – right? Of course, this would be a pretty boring blog post if that was right. Enter the Supreme Court’s decision in Thompson v. North American Stainless.
Employers have always been prohibited under Title VII’s anti-retaliation provision from retaliating against a “person aggrieved” by the employer’s illegally discriminatory action, but up until Thompson, employers could expect that meant the employee who made a claim of discrimination or others who directly supported the claim. Now, the people who can claim retaliation has been broadened greatly.
Blah, blah, blah, legal stuff, legal stuff. Kelsheimer – tell us what we need to know: OK, here it is. You have to look over your shoulder more than ever before if you have an open claim of discrimination. Every friend, fiancée, family member, or lunch buddy can lurk in the shadows waiting for you to do something – anything – that adversely affects the terms of their employment and – BOOM – you’ve got a new claim. This friend or acquaintance can say that you made the decision to retaliate against the original employee who made the first discrimination claim. They will say that you were really trying to get back Suzie 1stClaimer by reducing the 2nd employee’s pay rate, hours, or whatever else.
Is it really that bad? Well sort of. Employees will be able to make a colorable claim this way, but they won’t necessarily stick. Of course, the threat to employers will be the cost to get what might be a ridiculous new claim dismissed. The standard provided by the Supreme Court is that anyone adversely affected within the “zone of interest” can make this type of retaliation claim. What the heck does “zone of interest” mean? You’ve got me, but the Supremes say that it does include family members, spouses, and, based on the Thompson case, fiancées.
If you really want to try to avoid these claims, I guess it is time to go back and reconsider anti-nepotism policies, policies against more than one family member working in your business, and policies against employees dating.