Supreme Court Issues Victory for Employees in Anti-retaliation Claims

By: Eric Kang

Earlier this year, the Supreme Court handed down a decision representing a huge victory for employees. In a unanimous 8-0 decision,[1] delivered by Justice Scalia, the Court held that Eric Thompson, an employee who was fired three weeks after his fiancée (Miriam Regalado, also an employee) and had filed a sex discrimination claim against the employer, was protected and had standing to sue under Title VII’s anti-retaliation provision.[2]

This reversed the decision of the Sixth Circuit Court of Appeals, which held that “Thompson is not included in the class of persons for whom Congress created a retaliation cause of action because he personally did not oppose an unlawful employment practice, make a charge, testify, attest, or participate in an investigation.”[3]

The Court noted that the case essentially presented two issues. First, whether the employer, North American Stainless (“NAS”), firing of Thompson constituted unlawful retaliation, and second, if so, whether Title VII granted Thompson a cause of action.[4]

As to the first issue, the Court relied on Burlington Northern & Santa Fe R. Co. v. White to hold that because Title VII’s anti-retaliation provision “is not limited to discriminatory actions that affect the terms and conditions of employment”[5] (unlike the substantive provision), it “prohibits any employer action that ‘well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.’”[6] Analyzed against this standard, the Court held that a reasonable worker could be dissuaded from making such a charge if she knew that her fiancé would be fired.

As to whether Thompson himself had standing to sue under the anti-retaliation provision, the Court held that “a person aggrieved” under Title VII can sue if he “falls within the ‘zone of interests’ sought to be protected by the statutory provision whose violation forms the legal basis for his complaint.”[7] Here, Thompson clearly fell within the “zone of interests” because not only was he also an employee of NAS, his firing was the “unlawful act by which the employer punished.”[8]

It will be interesting to see how the Court’s ruling will affect future “third-party” retaliation claims. Although the Court declined to set a bright line rule as to which types of relationships would be protected under Title VII’s anti-retaliation provision, it did note that “a close family member will almost always meet the Burlington standard” while a “mere acquaintance will almost never do.”[9] Who falls in between will surely be litigated in the years to come.

1 Justice Elena Kagan recused herself from the case after having “personally reviewed a draft pleading or participated in discussions to formulate the government’s litigating position” thanks to her previous role as solicitor general. Supreme Court Justice Elena Kagan to Recuse Herself from 11 More Cases, JDJOURNAL, September 11, 2010,

[2] Title VII’s anti-retaliation provision prohibits an employer from “discriminat[ing] against any of his employees … because he has made a charge … in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a) (2006).

[3] Thompson v. North American Stainless, L.P., 567 F.3d 804, 808 (6th Cir.2009) (emphasis added).

[4] Thompson v. North American Stainless, L.P., 131 S.Ct. 863, 867 (2011).

[5] Id. at 868 (quoting Burlington N. & S.F.R. Co. v. White, 548 U.S. 53, 64, 126 S.Ct. 2405, 2413 (2006)).

[6] Id. (quoting White, 548 U.S. at 68, 126 S.Ct. at 2415).

[7] Thompson, 131 S.Ct. at 870 (quoting Lujan v. National Wildlife Federation, 497 U.S. 871, 883 (1990)).

[8] Id.

[9] Id. at 868.

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