Third-Party Retaliation (Part 2)

Earlier today we released a post that discussed the Supreme Court’s holding in Thompson v. North American Stainless, LP, __ U.S. __, 131 S. Ct. 863 (2011).

Since Thompson, a variety of opinions have been issued on what is within Title VII’s “zone of interest.”

Dating Relationships. In Harrington v. Career Training Inst. Orlando, Inc., No. 8:11–cv–1817–T–33MAP, 2011 WL 4389870, at *2 (M.D. Fla. Sept. 21, 2011), ruling on a motion to dismiss, the court found that Thompson could potentially apply to a mere dating relationship, stating “[i]n rendering its binding decision in Thompson, the Court declined to bar claims for third party reprisals, such as the one at issue in this action. Accordingly, consistent with Thompson, the Court denies the Motion to Dismiss.” Similarly, in Lard v. Alabama Alcoholic Beverage Control Bd., NO. 2:12-CV-452-WHA, 2012 WL 5966617, at *4 (M.D. Ala. Nov. 28, 2012), the district court held that an employee’s retaliation claim premised on the theory that the employer retaliated against him because of his coworker and girlfriend’s complaints of racial discrimination in the workplace stated a claim under Thompson, and therefore denied the employer’s motion to dismiss.

Best Friends. In Ali v. District of Columbia Government, 810 F. Supp. 2d 78 (D.D.C. 2011), the employer allegedly threatened to fire the plaintiff’s best friend and coworker, Marcus Craig, if he continued to proceed with his internal religious discrimination complaint. In denying the employer’s motion for summary judgment against the plaintiff’s retaliation claim, the court found this threat was actionable as retaliation under the Burlington N. standard. Id. at 89-90.

Spouses Employed At Two Different Employers. In McGhee v. Healthcare Services Group, Inc., NO. 5:10-CV-279-RS-EMT, 2011 WL 5299660 (N.D. Fla. Nov 2, 2011), the court extended Thompson to a situation involving two different employers. McGhee was employed by Healthcare Services Group (“Healthcare”). Healthcare was under contract with Sovereign Healthcare of Bonifay (“Bonifay”) as a vendor. McGhee’s position was to oversee the cleanliness of the Bonifay facility. McGhee’s wife was employed by Bonifay, and in May of 2009 she filed a charge of discrimination with the EEOC, alleging that Bonifay discriminated against her on the basis of her disability. McGee alleged that in retaliation for his wife’s protected activity he was terminated by his employer, Healthcare, at the request of Bonifay. McGee sued both Healthcare and Bonifay for retaliation.

Healthcare and Bonifay contended that Thompson was not applicable to the case because McGee was employed by Healthcare and his wife was employed by Bonifay. But, the court rejected that argument on summary judgment, stating:

Although Plaintiff and his wife were employed by different entities, Thompson gives no indication that this prohibits recovery. Plaintiff’s employer was a subcontractor of Bonifay, and Plaintiff’s physical workplace was at the Bonifay facility. The two employers and their employees are clearly intertwined, and under Plaintiff’s version of the facts Bonifay used its relationship with Healthcare to retaliate against Plaintiff’s wife for her protected activity. Allowing employers to induce their subcontractors to fire the subcontractor’s employees in retaliation for the protected activity of a spouse would clearly contravene the purpose of Title VII. It is easy to conclude that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her husband would be fired by his employer. See Thompson, at 868. Therefore, under the test set forth in Thompson Plaintiff’s interests fall within the “zone of interests” of those intended to be protected by Title VII.

Id. at *3.

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