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Labor & Employment FAQs

My offer letter states that I am an “at will” employee. What does that mean?

If I am laid off, does my employer have to pay me severance?

I was fired without cause. Do I have a claim for wrongful termination?

What types of workplace discrimination are prohibited by law?

My supervisor asked me for a date. Is that sexual harassment?

I am disabled. Is my employer required to accommodate me?

What is the Family and Medical Leave Act (FMLA)?

What is the difference between an “independent contractor” and an “employee”?

How do I know if I am entitled to overtime?

What is the statute of limitations for bringing an employment lawsuit?

Where can I find additional information about federal, state, and local employment laws?

I am a business owner. How I can protect my company and myself from lawsuits brought by employees?

Are unpaid internships legal?

Can my Facebook page be used against me in a lawsuit?

Are English-only workplace rules legal?

Can my employer fire me because my spouse or significant other complained about discrimination?





Q: My offer letter states that I am an “at will” employee. What does that mean?

In New York, as in most states, the basic rule is that an employer may fire an employee at any time, for any reason or for no reason.  Likewise, an employee may quit at any time, for any reason or for no reason.  This is known as the employment-at-will doctrine.  In essence, this means that a worker’s continued employment is not guaranteed and that a worker may be fired without notice and without cause.  The vast majority of employees are considered “at will.”  Exceptions to the employment-at-will doctrine are found in employment contracts, collective bargaining agreements, and nondiscrimination laws – all of which potentially limit the right of an employer to terminate an employee.


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Q: If I am laid off, does my employer have to pay me severance?

Probably not.  There is no legal requirement that employers pay severance to workers who are laid off.  In most cases, this is a voluntary decision that the employer makes in its discretion, including how much severance to pay (e.g., one week for each year of service).  However, an employee may be entitled to severance pay if he/she has an employment contract that guarantees severance pay.  Or the employer may have a company policy (e.g., stated in an employee handbook) to pay severance to workers under certain circumstances.  However, such policies often are not mandatory and do not give rise to a legal entitlement to severance.  The bottom line is that most employees are fortunate to receive any severance pay. 


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Q: I was fired without cause. Do I have a claim for wrongful termination?

It depends.  The term “wrongful termination” means a termination that is in violation of an employee’s contractual or statutory rights.  It does not mean a termination that merely was “without cause.”  As explained above, most employees are considered “at will” and may be fired for any reason – even a reason that is mistaken or unfair.  An example would be an erroneous accusation of stealing from the company, which would be a valid reason for firing an employee.  However, if the company violates an employee’s contractual or statutory rights – for example, by failing to abide by the terms of an employment contract or by discriminating against the employee – then the employee may have a claim for wrongful termination.


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Q: What types of workplace discrimination are prohibited by law?

There are numerous federal, state, and local laws that prohibit workplace discrimination.  However, not all unfair treatment is against the law.  Rather, the law only prohibits unfair treatment that is based on one or more “protected characteristics.”  The term “protected characteristics” refers to certain physical and social traits that are deemed by law to be unrelated to a worker’s occupational abilities, including age, sex/gender, race/ethnicity, religion, marital status, pregnancy, disability, and sexual orientation.  Employers may not make employment decisions (e.g., hiring, firing, promotions, job assignments, etc.) based on an employee’s protected characteristics.  Different laws prohibit discrimination based on different protected characteristics.  The New York City Human Rights Law, in particular, is one of the broadest laws in the country and covers a wide variety of protected characteristics.  New York City employers must be very careful about complying with this law.


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Q: My supervisor asked me for a date. Is that sexual harassment?

Probably not.  In general, sexual harassment occurs when an employee is subjected to sexually-oriented comments and behavior (not necessarily directed at the employee) that are so severe or pervasive as to create an offensive and abusive working environment (also known as a “hostile workplace”).  A single incident, unless extremely serious, usually does not constitute sexual harassment.  For example, if a supervisor politely asks an employee for a date, that is not sexual harassment.  But if the supervisor threatens to demote or fire the employee if he/she refuses, that is sexual harassment.  Employees who believe they have been sexually harassed should complain to management and/or human resources promptly, or they may be barred from asserting a sexual harassment claim in court.


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Q: I am disabled. Is my employer required to accommodate me?

It depends.  There are federal, state, and locals laws that protect the rights of disabled employees.  The term “disabled” has different meanings under different laws.  Under federal law (the ADA), the employee must have some physical or mental impairment that substantially limits his/her ability to perform major life activities (e.g., seeing, hearing, breathing, walking, lifting, sleeping, thinking).  All of these laws not only prohibit businesses from making employment decisions (e.g., hiring, firing, promotions, job assignments, etc.) based on a worker’s disability, but also require businesses to make reasonable accommodations that enable a disabled worker to perform the essential functions of his/her job.  Such reasonable accommodations may include altering a disabled employee’s work schedule or providing the employee with assistive devices.  These laws impose an affirmative obligation on employers to accommodate disabled workers, so long as these accommodations do not cause an “undue burden” on the company (e.g., in terms of cost or workplace disruptions).  However, if a disabled employee is not able to perform the essential functions of the job even with an accommodation, the worker may be fired.


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Q: What is the Family and Medical Leave Act (FMLA)?

The Family and Medical Leave Act or FMLA is a federal law that requires businesses with at least 50 employees to provide eligible workers (which excludes many new hires, seasonal, and part-time employees) with up to 12 weeks of unpaid, job-protected leave each year for specified family and medical reasons, including the birth of a child, to care for a family member with a serious health condition (up to 26 weeks if the family member is in the military), or to obtain treatment for the employee’s own serious health condition.  Under certain circumstances, employees may take FMLA leave intermittently, instead of in large blocks of time.  A covered business is required to maintain health insurance coverage for a worker on FMLA leave (if such insurance is provided to other employees) and to restore the employee to his/her original position (or its equivalent) at the end of FMLA leave.  Moreover, like most employment laws, the FMLA prohibits an employer from retaliating against an employee for exercising his/her rights under the statute.


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Q: What is the difference between an “independent contractor” and an “employee”?

Generally speaking, an independent contractor is a person who is in business for him/herself and is not the employee of another business.  For example, an outside attorney retained by a company to provide employment law advice is an independent contractor; whereas a staff attorney who is on the company’s payroll is an employee.  This distinction is important because most employment laws (e.g., minimum wage and overtime laws, nondiscrimination laws, unemployment insurance and workers’ compensation laws, income tax withholding laws) only apply to employees and do not apply to independent contractors.  In making this distinction, the key issue is the degree of control exercised by the business over the worker.  For example, who decides what, when, where, and how the work is performed?  Who provides the facilities, equipment, and supplies?  Who is responsible for pay, costs/expenses, and profit/loss?  Although the distinction is not always clear, the vast majority of workers, in fact, are employees, not independent contractors.  Misclassifying employees as independent contractors, whether unintentionally or on purpose, is one of the most common employment law mistakes made by businesses. 


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Q: How do I know if I am entitled to overtime?

Most employees in New York are covered by federal and state wage and hour laws, including the Fair Labor Standards Act (FLSA) and the New York State Labor Law.  The basic rule is that every employee is entitled to minimum wage (currently $7.25 per hour) and overtime (time-and-a-half over 40 hours in a work week).  There are few exceptions to the minimum wage requirement.  There are more exceptions to the overtime requirement, most commonly for certain types of “white collar” employees, e.g., executive, administrative, learned professionals, computer professionals, and outside salespersons.  The rules governing these exceptions are strict, however.  Generally speaking, unless an employee exercises significant independence and discretion in completing his/her assignments, the employee probably is entitled to overtime.  Misclassifying employees as “exempt” from overtime rules, whether unintentionally or on purpose, is one of the most common employment law mistakes made by businesses.


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Q: What is the statute of limitations for bringing an employment lawsuit?

It depends on the particular statute under which the employee seeks to assert a claim.  Under many federal laws, for example, an employee generally must file a charge of discrimination with the U.S. Equal Employment Opportunity Commission within 180 days of the alleged discrimination; then, after the EEOC issues a “right to sue” notice, the employee has 90 days to file a lawsuit in court.  In contrast, under the New York State Human Rights Law and the New York City Human Rights Law, an employee has 3 years from the date of the alleged discrimination to file a lawsuit in court.  Other statutes (e.g., FLSA, 42 U.S.C. § 1981, FMLA, etc.) have shorter or longer limitations periods.  Thus, different statutes have different limitations periods.  They also have different procedural requirements.  Consequently, employees should consult a qualified employment lawyer about any workplace problems as soon as they arise.     


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Q: Where can I find additional information about federal, state, and local employment laws?

The internet is a very useful tool for learning about employment law.  Try searching using your favorite search engines (e.g., Google, Yahoo, Bing, Ask, etc.).

There are several government websites that provide a wealth of information about most employment law subjects:

U.S. Equal Employment Opportunity Commission
U.S. Department of Labor/Wage and Hour Division
U.S. Internal Revenue Service/Businesses
New York State Division of Human Rights
New York State Department of Labor
New York City Human Rights Commission
 


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Q: I am a business owner. How I can protect my company and myself from lawsuits brought by employees?

The contemporary American workplace is subject to numerous federal, state, and local laws that impose strict obligations on businesses (e.g., wage and hour laws, nondiscrimination laws, etc.).  Many companies, especially smaller companies, do not fully understand the scope of these obligations and, as a result, frequently (albeit inadvertently) violate the law.  These violations can lead to costly lawsuits, as well as civil and criminal penalties.  In my experience both as a defense attorney and as a plaintiff's lawyer, the most common employment law mistakes made by businesses are the following (in no particular order):     

1.  Misclassifying employees as independent contractors.  In general, only workers who operate their own separate businesses are "independent contractors."  Few workers meet this test; in fact, most workers are considered "employees" under the law, which means they are entitled to the full range of workplace protections.

2.  Misclassifying non-exempt employees as exempt.  In general, all employees are entitled to minimum wage and overtime pay, unless they are "exempt" under federal and state law.  The exemption rules (e.g., for executive, administrative, and professional employees) only apply in limited circumstances, however; as a result, many employees who are claimed by businesses to be "exempt" in fact are entitled to minimum wage and/or overtime pay.

3.  Not complying with state wage payment laws.  New York imposes several specific rules regarding how businesses must pay their employees.  These rules include providing new employees with written notice of their rate of pay and regular pay date; prohibiting deductions from wages unless for the employee's benefit and authorized in writing; requiring written contracts for commissioned salespersons; and providing terminated employees with written notice of their last day of work, their last day of benefits, and their right to apply for unemployment benefits.

4.  Not having an employee handbook.  An employee handbook is an important tool for effective employer-employee relations.  It notifies employees of the company's values, policies, and procedures; promotes compliance with labor and employment laws; and helps create an orderly, efficient, and transparent workplace.

5.  Not documenting employee job performance.  A well-managed company clearly communicates its employees' duties and responsibilities (e.g., through written position descriptions), trains and supervises employees to ensure they are meeting these requirements, and provides regular, objective, consistent feedback (e.g., through written evaluations and, where necessary, disciplinary actions).  A lack of accurate, complete, contemporaneous documentation can lead to liability in the event of a lawsuit by an employee.

6.  Not training supervisors regarding EEO laws.  Federal, state, and local equal employment opportunity (EEO) laws prohibit businesses from taking adverse actions against employees (e.g., demotion, termination) for reasons not related to an employee's job performance, including based on an employee's race, color, sex, age, disability, religion, national origin, sexual orientation, and marital status (to name the most common "protected characteristics"), as well as in retaliation for an employee's good faith complaints of discrimination.  It is imperative that supervisors be trained on how to manage employees without violating (or appearing to violate) these laws.

7.  Not providing reasonable accommodations for disabled employees.  Most EEO laws prohibit businesses from taking adverse actions against employees based on certain protected characteristics, but disability discrimination laws also impose an affirmative obligation on businesses to "reasonably accommodate" disabled employees so as to enable them to perform the essential functions of their jobs.  Such accommodations may include restructuring job duties, modifying work schedules, or providing assistive devices.  Businesses are required to provide a disabled employee with needed accommodations unless doing so would cause an "undue hardship" to the company (e.g., too expensive, too disruptive). 

8.  Not obtaining releases from terminated employees.  When terminating an employee, businesses should try to obtain a release that waives the employee's potential legal claims against the company.  The best way to obtain a release is in exchange for an offer of severance (where appropriate).  In general, businesses are not required to pay severance to employees (unless required by an employment contract or a collective bargaining agreement).  If they decide to do so (e.g., in connection with layoffs), they should require employees to sign a release in exchange for the payment.

9.  Not protecting confidential business information.  Every company depends on certain vital, often confidential, information about its business operations, including trade secrets, sales and marketing practices, and customer and client lists.  Access to this information should be limited to employees with a "need to know" and should be protected by appropriate nondisclosure, noncompete, and/or nonsolicitation agreements (depending on the nature of the information and the employee's position).

10.  Not consulting a qualified employment law attorney.  Perhaps the single most important point to take away from this discussion is that businesses need to consult a qualified employment lawyer to ensure they are in compliance with the increasingly numerous and complex laws that carpet the workplace like a minefield.  Large companies usually have attorneys and human resources professionals on staff to assist them in this area.  Small- and medium-size companies often do not.  Their biggest mistake is trying to navigate this minefield on their own.


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Q: Are unpaid internships legal?

Probably not. College students and young workers often perform unpaid internships with companies in industries they are interested in pursuing for their careers.  Indeed, internships are common in most "white collar" fields, including publishing, fashion, television, film, high technology, advertising, and law.  Unpaid internships can be a "win-win" situation:  the intern benefits by obtaining work experience, networking opportunities, and exposure to different job settings, while the company benefits by identifying promising entry-level employees and obtaining some "cheap labor."  Alas, the "cheap labor" aspect of internships -- which makes many, if not most, internships economically feasible -- probably is illegal.

In general, unpaid internships for private, for-profit employers violate federal and state wage and hour laws, including minimum wage and overtime laws, unemployment insurance and worker's compensation laws, and payroll and income tax laws.  As stated by an official with the U.S. Department of Labor, Wage and Hour Division:  “If you’re a for-profit employer or you want to pursue an internship with a for-profit employer, there aren’t going to be many circumstances where you can have an internship and not be paid and still be in compliance with the law."  Why not?  Because in most cases an unpaid intern is considered an "employee" to which the full panoply of workplace rules applies.  (Internships with government agencies and non-profit charitable organizations are excluded from these rules.)

As the Wage and Hour Division recently explained, an unpaid internship must meet the following six criteria to pass legal muster:

1.  The internship must be "similar to training which would be given in an educational environment";

2.  The internship must be "for the benefit of the intern";

3.  The intern "does not displace regular employees" and "works under close supervision";

4.  The company "derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded";

5.  The intern "is not necessarily entitled to a job at the conclusion of the internship"; and

6.  The intern understands that he/she is not entitled to wages for the time spent in the internship.

These are very strict criteria that effectively bar most unpaid internships, which are intended to benefit both the intern and the company; otherwise, why would the company offer the internship in the first place?  Yet the Wage and Hour Division has stated unequivocally that a company may derive "no immediate advantage" from the internship.  The upshot is that if an intern performs any useful work, however simple or menial or clerical in nature, the intern must be treated as an employee, subject to all applicable labor and employment laws.  Failure to comply with these laws can result in liability for back wages, back taxes, and other civil and criminal penalties.


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Q: Can my Facebook page be used against me in a lawsuit?

Probably. Social networking websites, like Facebook, allow users to share information about their personal lives, including thoughts, descriptions, and photographs of what they are doing and thinking, often in "real time."  Facebook is the most widely used of these websites.  According to Facebook's statistics page, it has more than 500 million active users; more than half of  users log onto the website each day; and users spend more than 700 billion minutes on the website each month.  That's a lot of activity -- which is subject to discovery if a Facebook user is involved in litigation.

This issue was addressed recently by Justice Jeffrey Arlen Spinner of the New York Supreme Court for Suffolk County in the case of Romano v. Steelcase, Inc., 907 N.Y.S.2d 650 (Sept. 21, 2010).  Romano was a personal injury action in which the plaintiff claimed she had sustained serious and permanent injuries that restricted her daily activities, largely confined her to bed, and affected her enjoyment of life.  Her public profile on Facebook, however, showed her "smiling happily" "outside the confines of her home."  It further revealed that the plaintiff had travelled to other states and "has an active lifestyle."  In light of this apparent contradiction, the defendant sought access to the plaintiff's complete Facebook account, including deleted pages, but the plaintiff steadfastly refused.

In a thorough decision, Justice Spinner ruled that the information sought by the defendant was "material and necessary" to the litigation (specifically, it was relevant to the nature and extent of the plaintiff's alleged injuries) and that the defendant's need for the information outweighed the privacy concerns raised by the plaintiff.  Indeed, given that the very purpose of Facebook is to share personal information with others, the judge found that the plaintiff "has no legitimate reasonable expectation of privacy" in her Facebook account and cannot "attempt to hide relevant information behind self-regulated privacy settings."  The judge ordered the plaintfif to provide the defendant with access to her Facebook account.

Other courts have reached similar conclusions about the discoverability of social networking websites.  For example:

EEOC v. Simply Storage Mgt. LLC, 2010 WL 3446105 (S.D. Ind. May 11, 2010) (ordering disclosure and explaining that "a person's expectation and intent that her communications be maintained as private is not a legitimate basis for shielding those communications from discovery").

Bass v. Miss Porter's School, 2009 WL 3724968 (D. Conn. Oct. 27, 2009) (ordering disclosure and explaining that "relevance of the content of Plaintiff's Facebook usage as to both liability and damages in this case is more in the eye of the beholder than subject to strict legal demarcations, and production should not be limited to Plaintiff's own determination of what may be 'reasonably calculated to lead to the discovery of admissible evidence'").

Ledbetter v. Wal-Mart Stores, Inc., 2009 WL 1067018 (D. Colo. April 21, 2009) (ordering disclosure and explaining that the information sought by the defendant's subpoenas for the plaintiff's Facebook, My Space, and Meetup accounts "is reasonably calculated to lead to the discovery of admissible evidence as is relevant to the issues in this case").

The upshot is that what a person puts on the internet for other people to see probably will have to be disclosed to the other side in the event that the person is involved in a lawsuit. 


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Q: Are English-only workplace rules legal?

Probably, if justified on business grounds and narrowly applied. A 2003 report by the U.S. Census Bureau, based on Census 2000 data, found that 18% of the total population aged 5 and older (47 million people) spoke a language other than English at home.  This was an increase from 1990 (14% or 31.8 million people) and 1980 (11% or 23.1 million people).  Census 2010 data almost certainly will show a further increase in the number of foreign-language speaking persons in the United States.  Not surprisingly, the most common non-English language spoken in the United States, by far, is Spanish, spoken by 28.1 million people (according to Census 2000 data).  Other languages spoken by more than 1 million people include Chinese (2 million), French (1.6 million), German (1.3 million), Tagalog (1.2 million), Vietnamese (1 million), and Italian (1 million).  The number and variety of foreign-language speaking persons is even greater in certain large metropolitan areas (for example, Los Angeles and New York City).

What happens when foreign-language speaking persons go to work for businesses whose employees and customers are predominantly English-speaking?  Very frequently, these businesses adopt some form of "English-only" workplace rules that either limit or prohibit the speaking of non-English languages at work.  Are such rules legal?  Do they violate laws against employment discrimination based on race, ethnicity, or national origin?

The U.S. Equal Employment Opportunity Commission, which is responsible for administering and enforcing most federal employment discrimination laws, e.g., Title VII of the Civil Rights Act of 1964, has adopted a strict guideline for English-only rules.  See 29 C.F.R. s. 1606.7.  According to the EEOC:

(a) When applied at all times. A rule requiring employees to speak only English at all times in the workplace is a burdensome term and condition of employment. The primary language of an individual is often an essential national origin characteristic. Prohibiting employees at all times, in the workplace, from speaking their primary language or the
language they speak most comfortably, disadvantages an individual's employment opportunities on the basis of national origin. It may also create an atmosphere of inferiority, isolation and intimidation based on national origin which could result in a discriminatory working environment.  Therefore, the Commission will presume that such a rule violates title VII and will closely scrutinize it.

(b) When applied only at certain times. An employer may have a rule requiring that employees speak only in English at certain times where the employer can show that the rule is justified by business necessity.

Thus, the EEOC takes the position that blanket English-only rules are inherently discriminatory, but limited English-only rules can be justified by business necessity.  Although the EEOC guidelines do not have the force of law, they are shown considerable deference by courts applying Title VII and other statutes under the EEOC's jurisdiction.  See Albermarle Paper Co. v. Moody, 422 U.S. 405, 431 (1975); EEOC v. Beauty Enterprises, Inc., No. 01-CV-378 (AHN), 2005 WL 276822 (D. Conn. Oct. 25, 2005).

An excellent analysis by a federal district court in New York of the legality of English-only workplace rules is found in Pacheco v. New York Presbyterian Hospital, 593 F. Supp.2d 599 (S.D.N.Y. 2009).

In Pacheco, the plaintiff worked as a "patient representative" in a major New York City hospital.  He was an American citizen, born and raised in Puerto Rico, and fully bilingual in English and Spanish.  After several patients complained to management about hospital employees speaking Spanish around them -- the patients believed that the employees were gossiping about them and making jokes about them in a language the patients couldn't understand -- the plaintiff's manager told the plaintiff that he was to speak only English when performing his duties, unless he was assisting a Spanish-speaking patient.  Shortly thereafter, the plaintiff complained to the hospital's human resources department, which took no action.  The disputed ended up in court, where the plaintiff claimed national origin discrimination, under theories of disparate treatment, disparate impact, hostile work environment, and retaliation.  The court rejected each of the plaintif's arguments and granted summary judgment to the hospital.

The court's analysis under each theory focused on the hospital's proffered justification for the English-only rule.  Specifically, the hospital argued that the English-only rule -- which was a limited rule that did not prohibit the plaintiff from speaking Spanish during breaks and when not in the vicinity of patients -- was necessary for two reasons:  first, to promote effective customer (patient) relations; second, to enable the plaintiff's manager (who did not speak Spanish) to supervise and evaluate the plaintiff properly.  The court found that these reasons were non-pretextual, legitimate, and lawful:  "Given this undisputed record, the case law supports Defendant's claim of business necessity."  The court noted that this conclusion was consistent with the EEOC Compliance Manual, which provides that English-only rules may be justified "for communication with customers, coworkers or supervisors who only speak English" and "to enable a supervisor who only speaks English to monitor the performance of an employee whose job duties require communication with coworkers or customers."  See also EEOC v. Sephora USA, LLC, 419 F. Supp.2d 408 (S.D.N.Y. 2005) (upholding English-only rule that only applied when employees were on the sales floor interacting with customers, not when no customers were present or when employees were on break). 

In sum, English-only rules that apply to an employee's actual job performance, but provide exceptions for non-work time and non-work communications, probably are legal unless they are applied in an arbitrary or discriminatory manner (e.g., being enforced against speakers of certain foreign languages but not others; see here).  But blanket prohibitions on employees speaking non-English languages in the workplace probably are not legal.  Such rules are deemed inherently discriminatory by the EEOC guidelines and appear to contradict the reasoning set forth in the Pacheco and Sephora USA decisions.  Of course, each workplace situation will be analyzed on a case-by-case basis.


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Q: Can my employer fire me because my spouse or significant other complained about discrimination?

Probably not. The U.S. Supreme Court addressed this question in Thompson v. North American Stainless, No. 09-921 (Jan. 24, 2011).  Specifically, the issue before the Supreme Court in Thompson was whether Title VII provided a cause of action for one employee who was fired in retaliation for another employee's protected activity.  On the facts of the case before it, the Supreme Court unanimously held that Title VII did authorize a lawsuit by the second employee.  See the opinion here (written by Justice Scalia). 

The plaintiff in Thompson worked for North American Stainless and was the fiance of another employee who had filed a complaint of discrimination against the company with the EEOC.  The plaintiff alleged that in retaliation for the other employee's complaint, the company fired him.  It was undisputed that the other employee's complaint constituted protected activity within the meaning of Title VII's anti-retaliation provision.  The Supreme Court also had "little difficulty" finding that firing the plaintiff constituted unlawful retaliation under Title VII.  Citing its previous decision in Burlington Northern v. White, 548 U.S. 53 (2006), the Court explained that Title VII's anti-retaliation provision is violated by any employer action that "might have dissuaded a reasonable worker from making or supporting a charge of discrimination."  To the Court, it was "obvious" that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiance would be fired.

The central question in Thompson, however, was not whether the person who complained to the EEOC had a cause of action for retaliation (she did), but whether the person who was fired in response -- her fiance -- had a cause of action.  The Court said yes.

The issue turned on the meaning of Title VII's right-of-action provision, which states that "a civil action may be brought . . . by the person claiming to be aggrieved."  Who constitutes an "aggrieved person"?  The Court rejected the broadest reading of the statute, which extended the meaning of "aggrieved person" to the limits of Article III standing (i.e., a person claiming an injury-in-fact caused by the defendant and remediable by the court), because "abusrd consequences would follow," for example, authorizing Title VII lawsuits by corporate shareholders who allege that job discrimination harmed stock prices.

Instead, the Court applied a "zone of interests" test to Title VII, which it adopted from existing jurisprudence under the Administrative Procedures Act.  Under the "zone of interests" test a person qualifies as "aggrieved," and therefore authorized to file suit, if his asserted interests arguably are protected by the statute.  Conversely, a person falls outside the applicable zone of interests "if the plaintiff's interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit."

Although the Court "decline[d] to identify a fixed class of reltaionships for which third-party reprisals are unlawful," it concluded that the plaintiff "falls within the zone of interests protected by Title VII."  As the Court explained:

Thompson was an employee of NAS, and the purpose of Title VII is to protect employees from their employers’ unlawful actions. Moreover, accepting the facts as alleged, Thompson is not an accidental victim of the retaliation -- collateral damage, so to speak, of the employer’s unlawful act. To the contrary, injuring him was the employer’s intended means of harming Regalado. Hurting him was the unlawful act by which the employer punished her. In those circumstances, we think Thompson well within the zone of interests sought to be protected by Title VII. He is a person aggrieved with standing to sue.

For useful commentary on the Thompson case, see here, here, and here


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