Alaska Employment Law

In what creates a split between the federal circuits,  a man who was fired after his fiance filed a discrimination charge against his employer was allowed to proceed with a suit for retaliation.  The 3rd, 4th, and 8th Circuits have decided to the contrary.  Thompson v. North American Stainless, ____F3rd___, No. 07-5040 (6th Circuit, March 31, 2008).

The plaintiff and his fiance were employees of North American Stainless, and their relationship was common knowledge at the company.  In Sept of 2002, the fiance filed an EEOC discrimination claim against Stainless.  Five months later, the EEOC gave the company notice of her charge.  Thompson was fired three weeks after that.  He sued, claiming he had been fired due to retaliation.  The U.S. District Court granted summary judgment for the employer, but in a 2 - 1 decision, the 6th Circuit reversed.

The court noted that a literal reading of TVII anti-retaliation language suggests it applies only to employees who engage in protected activity, but that such a reading would defeat the plain purpose of the law.  There is no doubt that an employer’s retaliation against a family member after the employee filed a charge with a commission would dissuade “reasonable workers” from filing such claims.  The 6th Circuit decision flows from Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53 (2006), which broadened the standard under which employees can sue for workplace retaliation.  This definition of retaliation goes beyond demotions and discharges.  Any employer action against an employee who engages in protected activity that is “materially adverse” to the employee so as to discourage a reasonable individual from engaging in the activity can amount to retaliation. 

Management side attorneys believe the ruling is an improper application of  TVII and predict a flood of litigation; in fact, workplace retaliation claims have increased generally.  There was a dissent by Judge Richard Allen Griffin, who would have strictly interpreted TVII and accuses the majority of rewriting the law.  But the concept of associational retaliation, recognized by the 6th Circuit in this case, is an increasingly utilized concept in disability law, for example, where a parent with a disabled child may be treated differently.  And in ruling, the  court pointed out that of greater concern would be a holding to the contrary.  The decision urged by the employer would permit companies to retaliate with impugnity against employees who have filed charges by targetting their family members.  Further, the employee still bears the burden of proving a causal connection between the protected activity and the firing of the third person.

H/T Lawyers USA