Alert

Supreme Court Expands Retaliation Claims

March 29, 2011

As clients and friends of the firm, we wanted to inform you of two opinions issued by the United States Supreme Court this year which impact employers:

The first is the Thompson decision which extends retaliation claims to third parties.  Prior to this decision, courts generally limited application of anti-retaliation laws to persons who opposed unlawful employment practices or participated in proceedings concerning unlawful employment practices.  In Thompson, the Supreme Court extended the application to third parties associated with someone who opposed an unlawful employment practice or participated in an investigation. In Thompson, a female employee filed a charge of sex discrimination and three weeks later her fiancé was terminated.  The court determined that the fiancé had a cause of action for retaliation because a reasonable worker might be dissuaded from engaging in a protected activity if she knew her fiancé would be fired.

Following this opinion, we are recommending that employers update their retaliation policies to include a statement that retaliation against an individual who has a close association with someone who reported harassment or discrimination or who participated in an investigation of a claim of harassment or discrimination is prohibited.

The second Supreme Court case, Staub v. Proctor Hospital, confirms that even if a decision maker exercises independent judgment in making an employment decision, an employer may still be held liable for another supervisor’s discriminatory animus if that supervisor’s bias was a causal factor in the independent investigation.  In Staub, the decision maker terminated the plaintiff’s employment based on a disciplinary action given by two supervisors who were motivated by their hostility toward the plaintiff’s military obligations. Because the decision maker’s decision was based on a disciplinary action that was motivated by military service discrimination, the Supreme Court reversed judgment in favor of the employer.  Following Staub, it is important for “ultimate decision makers” to carefully review and consider all facts supporting the issue to be decided. If those facts include decisions and/or actions taken by other supervisory employees, the “ultimate decision maker” should make an independent determination that the prior decisions and/or actions were, apart from the supervisor’s recommendations, justified.

We recommend that training, especially of supervisory and management employees, include a discussion about Staub and its implications.