Argument recap: Who can file suit for third-party retaliation under Title VII?

On Tuesday, the Court (with Justice Kagan recused) heard argument in Thompson v. North American Stainless on the question whether Title VII’s anti-retaliation protection extends to third parties terminated because of their relationship with employees who complain about discrimination.  Respondent North American Stainless terminated petitioner Eric Thompson shortly after the company learned that Thompson’s coworker and then-fiancée (now wife), Miriam Regalado, had filed a gender discrimination complaint with the Equal Employment Opportunity Commission.

Representing Thompson, Eric Schnapper argued that Thompson was entitled to sue for his injuries under the statute.  He quickly faced questions from Justice Scalia, who asked why Regalado had not herself sued over his termination. Regalado could have brought suit, Schnapper answered, but under the Court’s Article III jurisprudence, she could not have recovered back pay or other damages payable to Thompson. Several Justices appeared unconvinced, however, with Justice Breyer later noting that there were “dozens of cases where you can sue to get somebody else paid back money.”  Why, he questioned, wasn’t this one of them?

But questioning swiftly turned to the line-drawing concern that dominated much of the argument: If some third parties may sue for retaliation, what is to prevent suit by any third party harmed by the violation of an employee’s rights? Could a “good friend” of the complaining employee sue?  Or “someone who just has lunch in the cafeteria everyday with” her?  Or “[s]omebody who once dated the person,” asked Justice Alito, who could “imagine a whole spectrum of cases” in which a third party could claim a relationship. Justice Kennedy wondered whether even a third party who was not an employee – for example, a shareholder harmed because a company discriminatorily fired a high-performing employee – could sue, although Justice Ginsburg noted that such a hypothetical did not involve retaliation for making a complaint.

Schnapper offered several principles for limiting the scope of third-party retaliation claims, including proximate cause and the requirement that a third party’s injury be motivated by retaliation against the complaining employee. Further, third-party claims would be controlled by the standard established in Burlington Northern v. White for all anti-retaliation claims, which  asks whether an employer’s retaliatory conduct is sufficiently serious to dissuade a reasonable employee from complaining.  

But Schnapper declined to articulate a bright-line rule for which relationships should count, emphasizing instead that Burlington is itself a standard.   Courts already determine on a case-by-case basis whether unlawful retaliation occurred.

The Court continued to press this line-drawing issue with Acting Principal Deputy Solicitor General Leondra Kruger, who argued for ten minutes in support of Thompson.

Justice Alito instructed Kruger to “[p]ut [he]rself in the shoes of an employer.”  “How is an employer supposed to tell whether somebody is close enough or not?” asked Chief Justice Roberts.

Kruger echoed Thompson’s suggestion that Burlington’s fact-specific test would provide the appropriate line-drawing guidance, just as in any other anti-retaliation case, but Justice Scalia disagreed that third-party retaliation claims would be the same.  In a run-of-the-mill anti-retaliation case, “at least you know who it is you have to be careful with” – the person who made the complaint.  But with a third-party retaliation claim, we “don’t know who it is . . . to be careful with.”

“Why can’t we say members of family and fiancées? Would that be a nice rule?” he asked Kruger.  “That would be an essentially arbitrary rule,” she replied.  To which Justice Scalia responded, “I know.” 

Leigh Gross Latherow argued for respondent North American Stainless.  Justice Sotomayor immediately interrupted her, asking whether, on the facts alleged, Thompson’s fiancée could have sued and recovered against the company for firing Thompson?  When Latherow agreed that she could, Sotomayor replied, “I would like to see that case next.  Are you willing to commit your company to that position?”  But she let Latherow off the hook saying, “I won’t do that to you.”

Later, Justice Scalia chided Latherow for conceding that it is unlawful to retaliate against a person who reports discrimination by firing their relative. If Thompson’s fiancée could sue, then “what’s the big deal? Then we still have the same problem, that the employer doesn’t know whom he has to treat with kid gloves.”

Justice Breyer, who suggested that precedent required the Court to broadly construe the scope of “persons . . . aggrieved” who may bring suit under the statute, offered his own solution to the line-drawing issue.  Under Justice Breyer’s rule, a person is aggrieved if the employer uses him as a means to retaliate against the complaining employee.  But he agreed with Latherow’s criticism that there was no basis in the text of Title VII for his rule.  He also agreed with Justice Ginsburg, however, that the Court’s precedent in analogous areas might provide support for the theory.