Tuesday morning, the Supreme Court will hear oral arguments in Thompson v. North American Stainless, an employment retaliation case that threatens to keep illegally fired employees from holding accountable the companies that fire them.
In 2003, North American Stainless fired Eric Thompson in retaliation against his fiancée, who also worked for the company and had just filed a sex discrimination complaint against it. Such retaliation against an employee seeking to vindicate her rights under Title VII is illegal. So Thompson sued.
Two separate provisions of Title VII are relevant here:
- First, to remove employees’ fear of retaliation, Section 704(a) states that an employer may not "discriminate against any of his employees … because he has … made a charge … under this title."
- Second, in a provision relating to employment discrimination overall and not just retaliation, Section 706(f )(1) authorizes a person aggrieved by an unlawful employment action to file suit to enforce Title VII.
The firing was designed to retaliate against an employee seeking to vindicate her rights and was therefore clearly an unlawful employment action. Thompson, who lost his job, was undoubtedly aggrieved by this unlawful employment action. There shouldn’t be any question that Congress gave him the right to sue.
Yet the Sixth Circuit Court of Appeals, dominated by nominees of George W. Bush, held otherwise. Ten judges (nine of whom were nominated by Republican presidents, a full seven by George W. Bush) held that Thompson cannot sue because he wasn’t the person who was being retaliated against. North American Stainless is asking the Supreme Court to uphold that holding.
The U.S. Chamber of Commerce has filed an amicus brief that is even more extreme: There was no unlawful retaliation in the first place, because the company never altered the working conditions of the woman who filed the initial complaint. In the frightening world the Chamber wants us to live in, firing a complaining employee’s fiancé, spouse, daughter, etc. is not at all considered unlawful retaliation.
As the Obama Administration points out in its amicus brief supporting the fired employee, the Sixth Circuit opinion ignores the plain language of Title VII. In addition, if upheld, it will have a devastating real-world impact. Most lay people unassisted by lawyers would naturally assume that the person who was fired – not the one who is still employed – should be the one to sue. If the Supreme Court bars suits by the most obvious plaintiffs, the ones who have suffered the most, then many injured parties will in the real world be left without a remedy.