New U.S. Supreme Court Decision Regarding Retaliation

Yesterday, the United States Supreme Court ruled that an employer violated Title VII when the employer terminated an employee’s fiancée three weeks after the employee filed an EEOC Charge against the employer. See Thompson v. North American Stainless, LP, 2011 WL 197638 (Jan. 24, 2011). The Supreme Court confirmed that although the fiancée did not engage in a protected activity, the employer could not retaliate against the fiancée because the action might have “dissuaded a reasonable worker from making or supporting a charge.” This decision should not surprise an employer, but the Supreme Court did note the difficulty with determining the type of relationship needed in this circumstance. Will a boyfriend/girlfriend relationship support a retaliation claim? What about very close friends? While the Supreme Court refused to draw a line, the Supreme Court stated firing a close family member almost always equals retaliation, while firing a “mere acquaintance” almost never does. We will wait for the lower courts to draw the line between “close family member” and “mere acquaintance.” Meanwhile, employers must be mindful that courts interpret Title VII retaliation broadly and employment actions against a complainant’s relatives or close friends might constitute retaliation.

Determining the Appropriate Discipline

If you are a college football fan you might have read that ESPN recently fired a play-by-play announcer for making a sexist remark to a female co-worker. If you haven’t seen the article, the background story is that during the pre-game production meeting for the Chick-fil-A Bowl game, the announcer told his female co-worker “Listen to me, sweet baby, let me tell you something …” After the co-worker told the announcer not to use that language with her, the announcer responded with “OK then, listen to me, assh*le.” ESPN terminated the announcer a few days after the comments were reported to management.

ESPN’s handling of this situation raises an interesting discussion regarding appropriate employee discipline. Most employers have varying levels of discipline ranging from verbal warning to demotion to termination. The question the ESPN situation raises is when should an employer issue a verbal warning versus a demotion or termination?

The law allows an employer to minimize liability from discrimination or harassment lawsuits if the employer can show it took “prompt remedial action” regarding the wrongdoing. Prompt remedial action is often a question for the jury and, therefore, the jury will determine if the employer issued sufficient and appropriate discipline. An employer should show the jury that the employer (1) had an anti-discrimination/harassment policy, (2) trained its employees about the policy, (3) quickly investigated any complaints, and (4) if the investigation revealed a policy violation, the employer issued appropriate discipline. Appropriate discipline is often shown when the employer followed the progressive discipline outlined in the company policy and the discipline stopped the wrongdoing.

In the ESPN case, according to the New York Post, the announcer had a history of making sexual comments towards female co-workers. The prior history of comments probably made it more necessary for ESPN to terminate the announcer as opposed to issuing a lesser disciplinary action. Since ESPN terminated the announcer instead of suspending or demoting the announcer, we’ll never know if a jury would have determined a lesser disciplinary action was appropriate.