Retaliation by Association is Illegal -- Thompson v. North American Stainless, LP

In Thompson v. North American Stainless, LP, the Supreme Court held that it is an unlawful employment practice under Title VII to terminate an employee's "close family member" in order to retaliate against her for filing a charge of discrimination with the EEOC.  It further held that a terminated fiancé would have standing to sue on his own behalf for this retaliatory termination. 

Neither of these holdings is surprising.  After all, the prospect of having a "close family" member fired is an obvious deterrent to filing an EEOC charge.  The terminated family member has just as obviously suffered a significant injury which is directly due to the prohibited retaliation.  Indeed, it would have been pretty shocking if the Court had said that such a terminated employee had no remedy.

More interesting are the issues that the Court specifically did not decide.  For example, while "close family members" are in the zone of protection it will be up to future cases to decide if friends, acquaintances, or even sympathetic strangers could file similar actions.   

Moreover, the Thompson case was decided based solely on the allegations of the pleadings, which the Court was bound to accept as true for purposes of the ruling.  As the Court explained:

Moreover, accepting the facts as alleged, Thompson is not an accidental victim of the retaliation-collateral damage, so to speak, of the employer's unlawful act. To the contrary, injuring him was the employer's intended means of harming [his fiancé]. Hurting him was the unlawful act by which the employer punished her. In those circumstances, we think Thompson well within the zone of interests sought to be protected by Title VII.

But this alleged scenario -- terminating employee A for the sole purpose of hurting employee B -- is probably not very common in the real world.  A more likely scenario is that once a whistleblower is terminated, his supporters or protégées may find themselves on the chopping block because they are now perceived as part of a disfavored or disloyal faction which has just lost its patron. 

Disentangling the acceptable rough and tumble of office politics from illegal retaliation will be a challenging task.  But the Thompson opinion seems to have started down a path that will require courts and juries to do exactly that in future cases.                  

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