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Supreme Court Watch: Marcia Coyle on Workplace Discrimination Case

Marcia Coyle of the National Law Journal was inside the U.S. Supreme Court Tuesday for arguments on the scope of job discrimination protection in Thompson v. North American Stainless. We asked Coyle some questions on the case.

The justices heard arguments Tuesday in a case involving employment discrimination. Who and what were before the court?

Marcia Coyle: Eric Thompson and his then-fiancee Miriam Regalado were working at Northern American Stainless in Kentucky when Regalado in 2002 filed a sex discrimination charge against the company with the Equal Employment Opportunity Commission. Three weeks after the company was notified of the complaint, it fired Thompson.

The question before the justices was whether Thompson could sue Northern American Stainless for retaliation against him because his fiancé had filed a discrimination complaint. The answer could affect all types of people who have close relationships with workers who have charged discrimination and who find themselves the victims of an employer’s reprisals.

What does the law say about lawsuits by third parties like Thompson?

Marcia Coyle: Here is the difficulty for the court. The text of our nation’s major job bias law — Title VII of the Civil Rights Act of 1964 — does not expressly cover people in Thompson’s situation. The law does prohibit retaliation against workers who charge discrimination or who participate or testify in a discrimination proceeding. It also allows lawsuits by “aggrieved persons.”

The lower federal court in Thompson’s case ruled in favor of the company. That court said that the law’s plain language did not cover Thompson because “he personally did not oppose an unlawful employment practice, make a charge, testify, assist, or participate in an investigation.” Thompson appealed to the Supreme Court.

What did Thompson argue in the Supreme Court today?

Marcia Coyle: Thompson’s counsel, Eric Schnapper of the University of Washington School of Law, told the justices that the law’s text does not limit the types of retaliation that are prohibited. When an employer singles out a family member or a fiancé, he argued, the purpose of the retaliation is to punish the worker who engaged in activity protected by the law.

Several of the justices questioned him about whether Thompson’s fiancée, Regalado, should have filed the retaliation suit. But Schnapper argued that Thompson was the proper person to sue because he meets the law’s definition of a “person aggrieved,” a definition that Title VII uses when stating who can bring a lawsuit. “Thompson is aggrieved because he was fired for a reason that was an improper reason,” said Schnapper.

Chief Justice John Roberts Jr. and Justices Scalia and Alito seemed concerned about where the line should be drawn on who could bring these lawsuits. How are employers supposed to know, when they want to fire or demote someone for legitimate reasons if that worker has a special relationship with another worker who has filed a discrimination complaint, they asked. And if there is a close relationship, won’t they face a frivolous suit?

Justice Alito asked,”Do you have to determine if the person has a close relationship, if he is dating, or keep a journal on casual and intimate relationships? What is the degree of closeness required?”

Acting Principal Deputy Solicitor General Leondra Kruger, who argued in Thompson’s support on behalf of the Obama administration, said there is “no hard and fast line.” But if an employer doesn’t know that a relationship exists, she said, there can be no causal connection between the employer’s action and the discrimination complaint. Most court cases involving third-party retaliation suits, she added, have involved parent-child, spousal and very close friend relationships.

What did the employer argue?

Marcia Coyle: The company’s counsel, Leigh Gross Latherow, emphasized that the text of the law did not protect third parties. She argued that under Thompson’s view of the law, any person, even a non-employee, who claims to be “aggrieved” could file a retaliation law suit.

Justices Ruth Bader Ginsburg told her that other federal laws, such as the National Labor Relations Act, protect third parties, like Thompson, and have done so for many years.

But Latherow stuck to her argument that Title VII’s anti-retaliation protection only protects workers who engaged in what the law calls “protected conduct”–reporting discrimination or testifying about it in a discrimination investigation. Thompson, she insisted, did not meet the terms of the statute.

How important is this case?

Marcia Coyle: This is a big case for workers and employers. Retaliation complaints are the fastest growing category of discrimination complaints today. Employers fear a ruling by the court against the company would trigger a new round of retaliation lawsuits by individuals who don’t have a close association with a worker who reported discrimination. But Thompson’s supporters contend that fear is baseless because the Equal Employment Opportunity Commission and several courts have allowed third-party claims since the 1970s and there has been no marked increase in that type of lawsuit.

The decision also will be important for workers who do face retaliation when a family member makes a discrimination charge. Thompson’s situation is not unusual, say some groups, such as the National Women’s Law Center, supporting his appeal. Most of the court cases have involved parent-child, spouses and close friend relationships, according to the government.

The court has not been particularly friendly to workers in interpreting federal anti-discrimination laws, with one big exception: retaliation. The justices’ decisions in this area generally favor broad protection against retaliation. It was difficult to tell from the arguments where the court will come out. Justice Elena Kagan did not participate in the case because in her prior job as solicitor general, she had worked on the government’s position. That leaves eight justices to reach a final decision.

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