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by M. McClure on Nov 11, 2010 at 3:41 PM

US Supreme Court to Consider Third Party Retaliation Claim under Title VIIOn December 7th, 2010, the United States Supreme Court will hear oral arguments on Thompson v. North American Stainless.  The facts of the case are simple: Thompson and his then fiancée (now wife) worked for North American Stainless.  The fiancée filed a gender discrimination complaint against Stainless with the EEOC.  The EEOC notified Stainless of the fiancée’s complaint, and Stainless fired Thompson three weeks later.  Thompson then sued Stainless claiming that he was fired in retaliation for his fiancée’s protected activity, which was filing a gender discrimination complaint.
    
Stainless moved for summary judgment, which was granted.  Thompson appealed.  The Sixth Circuit originally held in favor of Thompson, but on rehearing, reversed its previous decision, and held for Stainless, stating that it had no intention of becoming “the first circuit court to hold that Title VII creates a cause of action for third-party retaliation on behalf of friends and family members who have not engaged in protected activit[ies].”  Thompson then filed for Writ of Certiorari, which was granted.
    
Title VII makes it unlawful for an employer to fire an employee “because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.”  Stainless’ argument is that Thompson neither opposed Stainless’ discriminatory practices nor participated in his fiancée’s protected activities, and therefore has no cause of action under Title VII.

Thompson’s argument is that allowing employers to target friends and family will have a chilling effect on employee’s protected activities.  Basically, you are less likely to report your sexually harassing boss if you know your best friend/spouse/parent/sibling will be fired because of it.  Nonetheless, if the Supreme Court recognizes this third-party cause of action, the pool of potential plaintiffs under Title VII becomes much larger.  Importantly for Arkansas, the Eighth Circuit has rejected third-party retaliation claims, but we should have a response from the Supreme Court sometime during the spring of 2011.

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by M. McClure on Jun 17, 2009 at 4:19 PM

The Eighth Circuit Court of Appeals reaffirmed its previous holding that a prima facie case for retaliation requires a "materially adverse" action that produces "injury or harm." Littleton v. Pilot Travel Centers, LLC.  The court in Littleton found that an employer's corrective memo to an employee did not constitute retaliation.  

In Littleton, the employee filed a charge of discrimination with the EEOC alleging that he had been denied pay increases because of his race. Seven months after the charge was filed, the plaintiff was disciplined for inappropriate comments at a customer location.  The court found that the corrective notice did not impact the employee's career and that too much time had elapsed between the time of the charge and the corrective notice to create a causal connection.  One interesting piece of the court's analysis included the court's reliance on a supervisor's informal investigation of the complaint about the plaintiff's conduct. The court found that the company acted reasonably when it based its discipline of plaintiff on informal, undocumented employee interviews conducted by the supervisor.    

Bottom Line:  Employers in the Eighth Circuit, including Arkansas, can continue to issue employee discipline that is in accordance with the employer's practice, even after an employee has filed a charge of discrimination.  When an employee files a charge or lodges an internal complaint, the employer should proceed cautiously with future discipline, but the company is by no means barred from taking disciplinary action.

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