Associational Protection From Retaliation

Can companies be held liable for retaliating against an individual who has a close relationship with a fellow employee who has engaged in obvious protected activity, but may not have engaged in protected activity herself? The short answer is, it depends on under what law the retaliation took place and how the phrase “close relationship” is defined.

Although the federal appeals courts were in agreement that a close relationship with someone who has engaged in protected activity under Title VII is not sufficient to permit a person who has not engaged in such activity to pursue a retaliation claim, it may not be so clear now. In fact, in 2010, the U.S. Supreme Court (the “Court”) granted review of the Sixth Circuit’s decision in Thompson v. North American Stainless, LP, in which the Sixth Circuit held that a third party cannot pursue a retaliation claim under Title VII where he has not personally engaged in a protected activity. In Thompson, the Court focused its analysis on (i) whether an employer violates Title VII’s anti-retaliation provisions by terminating a fiancé of an employee who complained of discrimination; and (ii) whether the terminated fiancé may assert a Title VII claim on his own behalf, just by the nature of the relationship. Ultimately, the Supremes pointed to the broad language of Title VII’s anti-retaliation provision and held that it “prohibits any employer action that might dissuade a reasonable worker from making or supporting a discrimination charge”, while declining to define a set class of relationships for which third-party retaliation is unlawful (e.g., close family members, work colleagues, or mere acquaintances).

The Court then went on to consider whether Title VII even granted Thompson standing to bring a claim. Under Title VII, only a “person claiming to be aggrieved” has the standing to sue. Utilizing a broad view of that phrase, the Court interpreted it to mean that any plaintiff with an interest “arguably sought to be protected” by Title VII, and not simply the person who engaged in protected activity would arguably be protected and have the standing to sue based on an associational-retaliation theory. Applying a “zone of interests” test, the Court determined that Thompson’s interests were in fact protected by Title VII.

According to the Equal Employment Opportunity Commission (“EEOC”), ” ‘Covered individuals’ are persons who have requested accommodations, opposed unlawful practices, or participated in proceedings related to employment discrimination based on race, color, religion, sex (including gender identity and pregnancy), national origin, age, disability, or genetic information.” Individuals who have a close association (emphasis added) with someone who has engaged in such protected activity are also covered individuals. For example, following Thompson, it is illegal to take adverse employment action against an employee because his spouse participated in employment discrimination proceedings. This conclusion is slightly more attenuated than we saw in Thompson.

Using the language from Thompson, can the “zone of interest” test be applied to other laws in order to protect individuals from retaliation who have brought attention to violations of law other than pursuant to federal employment discrimination laws? For example, “whistleblowers” who raise ethical, financial, or other concerns under either the False Claims Act or the Sarbanes-Oxley Act of 2002 (as amended by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010).

Under Section 3730(h) of the False Claims Act, for example, there is an anti-retaliation remedy for “protected conduct,” (i.e., acts done in furtherance of an action under § 3730). See also, Dookeran v. Mercy Hosp. of Pittsburgh, 281 F.3d 105, 108 (3d Cir. 2002). To trigger this protection, it is clear that the individual who experienced retaliation need not actually file a claim in order to secure protection, as there may be several “acts done in furtherance” that still qualify to trigger protection, but yet fall short of actually filing. How about if the individual, who has an open, known, and apparent, close relationship with the one who directly engaged in traditional protected activity (i.e., filed a complaint with human resources) is being tossed into “the same boat” for all intents and purposes from the company’s perspective, i.e., “let’s get rid of them all”? Wouldn’t the intention of Congress still be met, offering protection for someone who may be penalized by the company just the same, but was perhaps less brave in doing so?

Under the Sarbanes-Oxley Act of 2002 (the “Act”), as amended by Dodd-Frank, it is silent as to whom the disclosure must be made. In Nollner v. Southern Baptist Convention, Inc., 852 F. Supp. 2d 986, at 993 (M.D. Tenn 2012), the court noted that it would be rendered meaningless by a construction requiring contact with the SEC. At least one federal district court has also held that an employee who provides information to someone who then passes it on to the SEC can be considered a “whistleblower” under the statute. From an internal reporting perspective, under various anti-retaliation provisions, a complaint must be made to at least a “manager” level in order for such whistleblower to be protected. It is not inconceivable then, as alluded to above, a lower-level employee, reports a violation to his boss, a manager, who then himself files a complaint with the company, would trigger anti-retaliation protection for the lower-level employee, as such lower-level employee initially disclosed information covered by the Act and was then associated with the management level employee who ultimately filed the complaint.

As you can see, this is not an easy area of the law to follow, and the laws themselves are in flux. One of the goals of this article is to shed some light on the breadth of what Congress intended when it crafted anti-retaliation provisions and how they may work to protect employees who not only obviously blow the whistle, but those who may be associated with those who clearly engaged in the traditionally-protected activity.

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