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Retaliation Claims Create Bigger Headache for Employers than Discrimination Claims

In 2010, retaliation surpassed race for the first time ever as the most frequently filed charge with the United States Equal Employment Opportunity Commission (EEOC). This is of great concern, given that retaliation is often far easier to prove than discrimination, and given that there has been a national trend of high damage awards issued by juries in retaliation cases. Of even greater concern is a decision issued by the United States Supreme Court on January 24, 2011. In Thompson v. North American Stainless, Thompson alleged that he was terminated in retaliation for his fiancée’s EEOC charge, while the employer contended that performance-based reasons supported his termination. The Court held that Title VII’s anti-retaliation provision provides a cause of action to any individual with an interest “arguably sought to be protected” by Title VII of the Civil Rights Act of 1964. The Court’s decision opens the door to third-party Title VII retaliation claims by a wide, but undefined, range of employees who have never engaged in protected activity. The Court held that Title VII’s anti-retaliation provision is broader in coverage than Title VII’s provision regarding discrimination and adopted a “zone of interests” standard for determining who is “aggrieved” under the statute. The Thompson ruling will likely facilitate the filing of a new genus of retaliation claims. Employers are advised to review the language in their non-retaliation policies to make certain it can be construed broadly enough to prevent retaliation against third-parties.