Thursday, March 24, 2016

Third-Party Standing: When Eric Is Aggrieved by Retaliation Against Miriam

In this post, I discuss the Supreme Court's decision in Thompson v. North American Stainless, L.P., 562 U.S. 170 (2011), and the concept of "third-party standing." "Standing" refers to the right to bring a lawsuit. Third-party standing involves circumstances in which the person bringing suit alleges that he or she was harmed as the result of unlawful discrimination against another person.

The facts of Thompson are simple. Eric Thompson and his fiancĂ©e, Miriam Regalado, both worked for North American Stainless. Regalado filed an EEOC sex discrimination charge against NAS, and three weeks later, NAS fired Thompson. As noted by the Supreme Court, Thompson alleged in his civil action that he was fired by NAS in order to retaliate against Regalado for filing an EEOC charge.

It may seem peculiar that Thompson should be considered a third party, given that it was he, rather than Regalado, who was fired. But the key is that Thompson alleged that he was fired in retaliation for Regalado's protected activity, so as recognized by the Supreme Court, it was Regalado who was allegedly subjected to unlawful retaliation under Title VII's anti-retaliation provision.

The Court thought it obvious that a reasonable person might be dissuaded from complaining about discrimination if she knew her fiancé would be fired in retaliation, and therefore, it had "little difficulty concluding that if the facts alleged by Thompson [were] true, then NAS's firing of Thompson violated Title VII."

The harder question, in the Court's view, was whether Thompson could sue for the alleged unlawful retaliation against Regalado.

Under Title VII, a lawsuit may be brought by a person "claiming to be aggrieved." Restricting these words to the individual who engaged in protected activity -- in this case, Regalado -- would, in the Court's view, impose an "artificially narrow meaning." At the same time, however, the Court thought that there should be some limits on the class of individuals who can bring suit and that absurd consequences would follow if Title VII standing were interpreted to require only the bare minimum under the Constitution. The Court stated that under such an interpretation, for example, a shareholder would be able to sue a company for firing an employee because of race if the shareholder could show that the value of his stock had declined because of the race-based termination.

Balancing these extremes, the Court held that Title VII authorizes suit by "any plaintiff with an interest 'arguably [sought] to be protected by the statute.'" Applying that standard to Thompson's case, the Court held that Thompson had standing to bring his lawsuit. In particular, the Court noted: (1) Thompson was an employee of NAS, and the purpose of Title VII is to protect employees; and (2) terminating Thompson was the employer's intended means of harming Regalado, and therefore, Thompson was not an "accidental victim."

Third-party standing is not limited to retaliation claims and can also arise in cases in which a plaintiff asserts that he or she was injured by discrimination against a third party that was based on race, sex, or another protected characteristic.  Prior to Thompson, some courts had held, for instance, that white employees had standing to bring a claim alleging discrimination against African Americans if it denied whites the benefits of interracial associations, e.g., Stewart v. Hannon, 675 F.2d 846 (7th Cir. 1982), or that men could have standing to sue if they were harmed by discrimination against women, e.g., Angelino v. New York Times, 200 F.3d 73 (3d Cir. 1999). However, Thompson adopted a new standard for evaluating standing, and it remains to be seen how readily lower courts applying that standard will recognize third-party standing in cases that do not involve retaliation.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.