Don’t Count on a Retaliation Loophole

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Jane Lewis Volk

By Jane Lewis Volk

It is illegal for an employer to retaliate against any employee who voices or files a discrimination complaint, but what about actions taken against the employee’s family or friends who work for the same company?

A recent court case closes the loophole. In the case, the Supreme Court had to decide whether a third party had a right to sue his employer on grounds of retaliation if he was not the one who committed the action that the employer was supposedly retaliating against.

In the case, a female employee filed a gender discrimination complaint with the Equal Employment Opportunity Commission. Three weeks later, her fiancé, who worked for the same employer, was fired from his position. The fiancé then sued the company, claiming that his termination was an unlawful method to punish the employee who filed the complaint. The employer maintained that the termination was performance-based.

Title VII of the Civil Rights Act of 1964 prevents employers from threatening any retaliatory act, including changes in wages, working conditions or employment, that might dissuade an employee from filing a discrimination complaint. Although the employee who filed the complaint clearly is protected, the law does not specify if protection from those unlawful actions spreads to other employees associated with him or her.

The employer claimed that no third party who does not take part in protected activities should be allowed to sue, but the Supreme Court decided in favor of the fiancé, holding that he could take his case to trial. It ruled that the intention of the law was to prevent employers from taking any action that might dissuade any employee from making a complaint, and the possible firing of a close relative is a consequence that certainly might deter an employee from complaining. Therefore, the fiancé fell under the protective provisions of the law and had a right to sue.

The case carries an obvious reminder to healthcare employers that no retaliatory action should be taken against any employee who files a discrimination complaint, including punishment inflicted on friends and family and that all employee discipline may become subject to scrutiny. The fact that third parties can sue for violations of Title VII should serve as an eye-opener to healthcare providers that Title VII’s provisions may reach further than they previously expected.

There is no precise definition of exactly what actions and relationships meet the standard for the right to sue, but healthcare employers could see more lawsuits for violations of Title VII cropping up. For example, a nurse who has had her wages reduced could sue on the claim that she was punished because a friend had filed a discrimination complaint. Even if the two events are mere coincidence, a healthcare provider that cannot provide clear evidence about why the employee’s wages were reduced could be vulnerable to a charge and a lawsuit.

The best way for a healthcare employer to protect itself against Title VII lawsuits is to diligently keep records of all actions and decisions regarding employment and making sure that employment actions are taken for legitimate, non-discriminatory reasons. Consistency is always paramount. A court would certainly be suspicious if a terminated employee’s file was filled with glowing reviews. But if the employee was terminated for reasons like poor performance or a layoff due to a downturn in business, there should be documents that support the objectivity of the termination.

Healthcare employers should always assume that there are no loopholes to the anti-retaliation provisions of Title VII and not attempt to retaliate in any way against an employee who files a complaint, including by taking action against another employee. But by opening up the possibility that third parties can file a retaliation lawsuit without ever having taken part in protected activities, the Supreme Court has made it more important than ever that healthcare employers leave a carefully documented trail for every employment decision they make.

Jane Lewis Volk is an attorney at Meyer, Unkovic & Scott. She may be reached at jlv@muslaw.com.