Beware: The fallout of a 2011 landmark Supreme Court ruling is starting to hit home with HR pros.
You remember the decision in Thompson v. North American Stainless, in which the high court ruled federal discrimination law extended retaliation protection to third parties — employees who are affiliated with a person who’s made a workplace complaint, but who haven’t filed a complaint themselves.
Prior to that decision, before meting out any kind of discipline — especially a termination — conscientious HR professionals always reviewed a checklist to see if there was any reason to be extra-careful to avoid possible retaliation or wrongful dismissal lawsuits.
That checklist included questions to make sure that the person didn’t belong to any kind of protected class, like:
- over 40, or
- whistleblower or filer of some other kind of complaint.
That’s all changed now, says Charlie High, an employment law attorney from the Kemp Smith law firm in El Paso, TX.
In the wake of Thompson, you have to add one more question to that list: Does the person have anyone else in his or her “zone of interest” that meets those criteria?
The Supreme Court created that new term “zone of interest” in the Thompson case, but no one is quite sure yet just exactly what it means.
It would certainly seem to include spouses or fiance(e)s of the employee involved if they also happen to be working for the same employer, and other members of someone’s immediate family.
Casual acquaintances are probably out.
Who’s in that ‘zone of interest’?
But do friends count, and if so, how close does the friendship have to be for the person to be considered in that “zone of interest”? And what about other, more distant family members?
And for that matter, what about mere boyfriends/girlfriends who aren’t (yet) engaged, especially if the employer doesn’t even know about the relationship?
High predicts lots of new litigation will follow to further define the expanded “zone of interest” for protected classes.
“It’s positively a lawyer’s dream,” he told a group of fellow attorneys at a recent conference in Las Vegas, “and a guarantee of lifetime employment for us.”
The facts of the case
Thompson was the fiance of a female employee who had complained about sexual discrimination and harassment. Some time after she filed her complaint, he was let go.
He sued for illegal retaliation, alleging he was let go in retaliation for his fiancee having filed the complaint. The company tried to get the claim dismissed because he wasn’t in any protected class as he hadn’t filed any complaint himself.
Action would have chilling effect
The court said Thompson’s discharge was indeed illegal retaliation under the EEOC’s Title VII anti-retaliation provision for his fiance’s filing. “We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiance would be fired,” according to the ruling.
With that one ruling, the court changed the entire standard on who qualifies as a protected individual.
The old standard looked only at any protected activity of the individual involved.
The new post-Thompson standard also looks at the protected activities of the individual AND his or her close associates, family members, etc.