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by M. McClure on Sep 12, 2011 at 2:49 PM

Individual Liability for Retaliation in ArkansasThe Arkansas Supreme Court recently answered a certified question from a federal court regarding whether managers may be personally liable in retaliation cases brought under the Arkansas Civil Rights Act. The question is an important one because most courts have found that individuals are not liable for retaliation under Title VII of the Civil Rights Act, the federal discrimination law. 

In Calaway v. Practice Management Service, Ms. Calaway complained to the office manager about sexually harassing comments from her physician-employer.  Calaway asserts that once the physician learned of Calaway’s complaints, he immediately terminated her employment.  

Calaway filed her lawsuit in federal court, alleging that she worked in a hostile work environment and that Practice Management and the physician retaliated against her.  Her lawsuit sought to hold Practice Management and the physician liable under Title VII and the Arkansas Civil Rights Act. 

The Arkansas Supreme Court determined that the Arkansas Civil Rights Act allowed a person to be held individually liable for retaliation.  The Court reasoned that the section of the statute that concerns retaliation unambiguously refers to a "person."  The court looked to the plain meaning of the word "person" and interpreted it to mean an individual, thus creating individual liability for retaliation claims.

Bottom Line:  Until the Arkansas legislature changes the state statute regarding retaliation, management and human resources employees could be personally liable for business decisions that create retaliation complaints.  Individual liability does not exist under Title VII, so it would be up to the Arkansas legislature to amend the Arkansas Civil Rights Act to bring it in line with federal law.

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by M. McClure on Feb 25, 2011 at 1:28 PM

Retaliation claims now available to friends and familyRetaliation claims under Title VII recently became available to a new group of employees, including friends and family of employees who complain about discrimination. The United States Supreme Court unanimously held in Thompson v. North American Stainless that Title VII creates a cause of action for a third party who suffers some adverse employment action because of an association with an employee who complained of discrimination.

The facts of the case are simple: Thompson and his then fiancée (now wife) worked for North American Stainless (“NAS”).  The fiancée filed a gender discrimination complaint against NAS with the EEOC.  Three weeks after receiving notice of the fiancée’s complaint, NAS fired Thompson.  Thompson then sued NAS claiming that he was fired in retaliation for his fiancée’s protected activity, which was filing a gender discrimination complaint.

Justice Scalia, writing for the Court, stated that there were two question presented: First, did NAS’ firing of Thompson constitute unlawful retaliation? And second, if it did, does Title VII grant Thompson a cause of action?
   
With regard to the first question, Justice Scalia wrote, “Title VII’s anti-retaliation provision must be construed to cover a broad range of employer conduct.”  Furthermore, Title VII prohibits any employer from taking action that might dissuade a reasonable worker from making or supporting a charge of discrimination.  The Court stated, “We think it is obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew her fiancé would be fired.”

The Court then declined to identify a fixed class of relationships for which third-party reprisals are unlawful, stating that, “Title VII’s anti-retaliation provision is simply not reducible to a comprehensive set of clear rules.”   

The second question raised by Thompson, whether the third party victim has a cause of action under Title VII, was more difficult, and revolved around that meaning of the word “aggrieved.”  The Court adopted the “zone of interest” approach.  

Under the “zone of interest” approach, “a plaintiff may not sue unless he falls within the ‘zone of interests’ sought to be protected by the statutory provision whose violation forms the legal basis for the complaint.”  In other words, Mr. Thompson can sue for third party retaliation under Title VII because his employment was terminated by NAS, but a stock holder could not because her harm is not related to employment.

Bottom line: More employees are now eligible to bring retaliation claims, which are some of the hardest types of Title VII claims to defend. Employers should consider whether any adverse employment action creates the appearance of retaliation before moving forward with it. 

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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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