Supreme Court Takes New View on Anti-Retaliation Cases

Yesterday, in an opinion written by Associate Justice Antonin Scalia, the United States Supreme Court ruled by a margin of 8-0 (Justice Kagan recusing herself) that the fiance of an employee who had complained of discrimination had standing to sue the company under anti-retaliation statutes. (Justices Ginsburg and Breyer voted with the majority, but Ginsburg wrote a concurring opinion in which Breyer joined.) You can read the opinion in Thompson v North American Stainless, LP yourself at http://www.supremecourt.gov/opinions/10pdf/09-291.pdf .

For those who choose not to read the opinion (surely your reading tastes must be very narrow if you don't find this sort of literature both bone-tingling and spell-binding he says with tongue planted firmly in cheek), I'll summarize it here, perhaps with a few editorial comments.

Mr. Thompson and his fiancée, Miriam Regalado, were employees of North American Stainless (NAS) when Ms. Regalado filed a gender discrimination charge against NAS. Subsequently, Mr. Thompson's employment was terminated by NAS. Mr. Thompson claims that he was terminated as retaliation for Ms. Regalado's complaint. Earlier, the 6th Circuit, relying on prior case law, had ruled that Mr. Thompson had no standing to sue in this regard, but the Supreme Court disagreed, essentially unanimously.

For infrequent or non-observers of the Supreme Court (frequently referred to as SCOTUS in the age of Twitter, but I will refrain here), it's time for some editorial relief. Most cases heard by the Supreme Court come from one of the 11 Circuit Courts of Appeals (the US Constitution provides that certain cases may go directly to the Supreme Court, but that discussion is better left for a high school civics class). The Theorem of the Wacky Threes reads as follows:

Most really wacky decisions that come out of the Circuit Courts come from a circuit whose enumeration is a multiple of three. Since the Ninth Circuit is enumerated as three times three, it will produce the wackiest decisions of all.

So, it's not surprising (at least not to me) that a case heard by the Sixth Circuit (six being a multiple of three) is one that would be overturned in unanimity. Now, we return to the case.

First, understand that this ruling does not mean that Mr. Thompson has prevailed in his action, but simply that he has standing to pursue his action. In order to prevail, the burden still lies with him to demonstrate that NAS took action against him that was retaliation for his fiancée's actions. The ruling focuses on Title VII of the Civil Rights Act. It prohibits any employer action " 'that well might have "dissuaded a reasonable worker from making or supporting a [discrimination] charge." ' " In regular English, if Ms. Regalado knew that Mr. Thompson would be fired if she filed her complaint, would she have been dissuaded from filing her complaint?

As I have said many times here, I am not an attorney. I have no formal legal training. But, while NAS argues that the burden placed on employers is too great here, to me this ruling makes sense. I don't think it extends so far as the employer needing to monitor every workplace relationship, but if there is no documentation of other reasons for which NAS terminated Mr. Thompson, then he deserves some protection. So, now, the case will return to the lower courts to be heard. The verdict may be interesting, but the really important part, in my mind, has already been decided.