SUPREME COURT TO REVIEW THIRD-PARTY RETALIATION CLAIM

by Art Gutman Ph.D., Professor, Florida Institute of Technology

On the final day of its 2009-2010 term, the U.S. Supreme Court agreed to review Thompson v. N. Am. Stainless LP (U.S., No. 09-291, cert. granted 6/29/10), in which Eric Thompson was fired after his fiancé, Miriam Regaldo, lodged a sex discrimination suit against North American Stainless. Thompson previously lost at both lower courts. The district court granted summary judgment for the defendant, a 3-judge panel of the 6th Circuit upheld the district court in a 2-1 decision, and 6th Circuit then upheld the 3-judge panel en banc in a 10-6 ruling. BNA provides an open document summary of the facts and history of this case. The question to be addressed by the Supreme Court is whether reprisal against a relative or close associate constitutes retaliation.

The defendant argued that Thompson’s termination was based on poor performance, and that Thompson himself had never opposed any employer policies, including Regaldo’s. Upon invitation from the Supreme Court, the Solicitor General, although agreeing that the case was mishandled, nevertheless opposed review of this case on two grounds: (1) there is no conflict among circuit courts on the issue in question and (2) Regal do, herself, should have lodged the claim. Thompson’s attorneys argued that the 6th Circuit ruling provides a “grotesque incentive” for employers to “adopt an express policy inflicting such reprisals.” They also argued that the EEOC Compliance Manual warns against reprisals for relatives and close associates.

Given prior friendly rulings for plaintiffs by the Supreme Court, it’s best to assume, in my opinion, that Thompson will prevail.

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