Watch Out – A New Expansion of Retaliation Suits

Kegler Brown E-mployment Alert

Everyone knows the danger of retaliation lawsuits - where someone is fired or otherwise treated adversely after they make a complaint of harassment, file a discrimination charge, etc. Usually, the retaliation claim is harder to defend than the initial complaint or charge.

Now, based on a new ruling two weeks ago by the Sixth Circuit Court of Appeals (which covers Ohio), we can expect a whole new type of retaliation claims - retaliation by “association.” [Thompson v. North American Stainless, LP, 2008 U.S. App. Lexis 6776 (6th Cir. 2008)].

In this case, a female employee filed a charge of sex discrimination against the Company with the EEOC. Three weeks later, her fiancé, who also worked at the Company, was fired. Although the Company said he was discharged for performance reasons, he claimed that he was discharged in retaliation for his fiancé’s sex discrimination complaint. The Company said he wasn’t entitled to even bring such a claim because he wasn’t the one who filed the discrimination charge (i.e., he didn’t engage in the “protected conduct”). In fact, numerous other federal appellate courts have issued rulings that supported the Company’s position.

But our Court of Appeals disagreed. The Court ruled that retaliation against a family member or associate would dissuade reasonable employees from filing discrimination complaints, and therefore the anti-retaliation law covers “related or associated third-parties.”

How far does the newly-extended umbrella of protection extend? It’s hard to tell. The Appeals Court did not limit its discussion to “family members” or any defined group. Instead, the Court’s opinion used phrases like “spouses or close associates,” and “relatives and associates,” and “family members and friends,” and simply “third-party reprisals.”

Does this mean that anytime someone makes a complaint of harassment or discrimination, all of their friends at work will jump on the bandwagon and cry “retaliation” if something negative happens to them? Let’s hope not.