U.S. Supreme Court Expands the Scope of Employment Claims
Three recent Supreme Court cases, Thompson v. North American Stainless, Staub v. Proctor Hospital, and Kasten v. Saint-Gobain Performance Plastics Corp., have expanded the scope of employment claims in significant ways. This article briefly summarizes these cases and provides practical guidance for employers in light of these decisions.
Title VII Protects “Third Parties” from Retaliation
Can an employee who has never complained of harassment or discrimination under Title VII sue his or her employer for retaliatory termination based on a complaint made by a fiancée or family member? In January, in Thompson v. North American Stainless, the Supreme Court answered this question, “yes.” The Court reasoned that “a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.” Accordingly, the Court held that the employee, who never personally engaged in any protected conduct, was entitled to bring a retaliation claim under Title VII based on the theory that he was terminated because of his fiancée’s protected conduct.
The Court’s decision in Thompson leaves open some important questions. Does the Court’s decision mean that an employer is at risk for a retaliation claim whenever it fires an employee who has some connection with another employee that has engaged in protected conduct? What about firing an employee’s girlfriend, close friend, or trusted co-worker? The Court acknowledged these open questions, but did not provide a categorical or bright-line rule to answer them. Rather, the Court held that an individual’s right to bring a Title VII retaliation claim based on a co-worker’s protected conduct must be decided on a case-by-case basis. However, the Court did provide some parameters for this case-by-case analysis by noting that a retaliatory firing of “a close family member will almost always” be impermissible, but that a “milder reprisal on a mere acquaintance” might not. Within these general parameters, lower courts are left to determine the circumstances under which other potential relationships may entitle an employee to rely on another’s protected conduct as the basis for the employee’s retaliation claim.
Independent Investigations Do Not Automatically Protect Employers from Liability
Under what circumstances may an employer be liable for the discriminatory bias of supervisors who caused or influenced, but did not make, the ultimate employment decision? In a case decided this past March, Staub v. Proctor Hospital, the Court addressed that question in the context of a discrimination claim brought under the Uniformed Services Employment and Reemployment Rights Act of 1984 (USERRA). The Court held that an employer can be liable for the discriminatory acts of a supervisor, even if the supervisor did not actually make the final employment decision, if (1) the supervisor performs an act (e.g., a recommendation for a termination) with discriminatory bias, (2) the supervisor intends this act to cause an adverse employment action, and (3) the act is a proximate cause of the adverse employment action. While the Court applied this standard specifically to a claim under USERRA, the Court suggested that this standard would also apply to claims brought under many other federal discrimination laws, such as Title VII, because such laws contain similar language prohibiting discrimination.
In formulating this theory of liability, the Court also expressly rejected a bright-line rule that would shield an employer from liability for a supervisor’s acts when an employer conducts an independent investigation before making an employment decision. Instead, the Court held that if the employer’s investigation takes the supervisor’s discriminatory actions into account in any way when making its employment decision, then the supervisor’s discriminatory actions could be considered a proximate cause of the employment action and, therefore, the employer could still be liable. But, the Court also held that, if the investigation does not take the supervisor’s biased actions into account and the investigation results in an adverse action for reasons entirely unrelated to the supervisor’s actions, then the employer will not be liable.
Oral Complaints Are Protected by the FLSA
Oral complaints under Title VII have long been considered protected conduct. In a case decided this past March, Kasten v. Saint-Gobain Performance Plastics Corp.,the Court held that oral complaints are also protected conduct under the Fair Labor Standards Act (FLSA). Accordingly, the FLSA’s anti-retaliation provision protects employees who “file any complaint” regarding purported wage and hour violations, whether that complaint is written or oral.
Practical Guidance: What Should Employers Do?
In light of these recent decisions, employers should take the following steps to minimize the risk of a discrimination or retaliation claim:
1. If An Employee or An Employee’s Closely Associated Co-worker Has Engaged In Protected Activity, Exercise Caution Before Taking An Adverse Action.In light of the Thompson decision, if an employer knows that an employee or an employee’s closely associated co-worker, such as a family member or fiancé, has engaged in protected conduct, the employer should ensure that it has a clear, legitimate reason for any adverse actions it plans to take against either employee. In such situations, employers should also exercise caution and document their decisions carefully and thoroughly. The Thompson decision also underscores the importance of keeping personal information about various employees, such as their relationship to other co-workers in their company, confidential and not sharing information between supervisors in different departments unless absolutely necessary.
2. When An Employee Complains, Conduct a Thorough and Independent Investigation.The Staub decision provides at least two important reminders for employers. First, when an employee complains about discriminatory treatment by supervisors, such complaints should be thoroughly and independently investigated before the employer takes any employment action against the employee. Second, the company’s investigators should look for signs that a supervisor is taking or recommending an adverse action because of some sort of discriminatory or retaliatory animus. If any sign of such a bias is found, the employment decision should be based entirely on information obtained (or at least corroborated) independent of the employee’s supervisor and not on information the supervisor provided.
3. Develop and Maintain Clear Policies to Handle Employees’ Written or Oral Complaints.In light of the Kasten decision, it is critical that employers ensure that their policies address the process for handling employees’ concerns and complaints. Managers need to understand that oral complaints can constitute protected activity and that they should be taken seriously and must be investigated. Employers also need to be cautious about taking adverse action against employees who make such complaints.
For more in-depth advice or training regarding the application of these decisions in your business, please contact an attorney in the Troutman Sanders’ Labor and Employment Group.