United States Supreme Court Expands Retaliation Risks for Employers
By Kenneth W. Gage, Neal D. Mollen & Alyssa J. Porco
The Supreme Court recently decided the second of two retaliation cases that continued a long and nearly unbroken series of losses for employers. In both cases, the Court broadened the scope of employers potential exposure to claims of unlawful retaliation.
In the first case, Thompson v. North American Stainless, LP, ___ U.S. ___, No. 09291 (decided January 24, 2011), the Court held that third parties, who do not themselves engage in a protected activity, may nevertheless bring retaliation claims under Title VII of the Civil Rights Act of 1964. The decision arguably limits this new category of potential plaintiffs to employees with close relationships with the employee who engaged in the protected activity a range of relationships the Court refused to define but it plainly broadens the risks that an employer must consider whenever an employee engages in protected activity. And for now, the scope of that risk remains for further development in the lower courts.
In the second case, Kasten v. Saint-Gobain Performance Plastics Corp., ___ U.S. ___, No. 09834 (decided March 22, 2011), the Court held that oral complaints of a violation of the Fair Labor Standards Act (FLSA) may constitute protected conduct under FLSAs antiretaliation provision. The Court refused to decide a separate but related question, whether the FLSAs anti-retaliation provision applies only to complaints made to the government. For now, at least, employers must consider internal complaints as possible predicates for retaliation claims.