Retaliation claims in employment litigation have been on the rise for years. The typical scenario has an employee reporting some sort of alleged discriminatory act, either against them or a coworker, followed by the employer taking an adverse employment action against the reporting employee. We all know that Title VII prohibits retaliation against an employee who engaged in protected activity (e.g., reporting discrimination), so the employee can sue for the alleged retaliatory decision. But what if the person suffering the alleged retaliation is not an employee of the company? In James Simmons vs. UBS Financial Services, Incorporated, the Fifth Circuit recently addressed that situation.
Vendor Dad/Pregnant Daughter
Jo Aldridge was an employee of UBS. She filed an internal complaint with the company and, later, an EEOC charge for pregnancy discrimination. She and UBS settled that claim, and Ms. Aldridge resigned. However, Ms. Aldridge’s father, James Simmons, had a continuing relationship with UBS as a third-party seller of life insurance to UBS clients. Although he sometimes worked out of UBS’s offices, he was not a UBS employee. After his daughter’s pregnancy discrimination claim, UBS no longer let Mr. Simmons come to the UBS offices and eventually cut him off from all its clients. As a result, Mr. Simmons lost his job with the insurance vendor.
Getting to the Daughter Through the Father?
Mr. Simmons filed suit against UBS claiming that UBS retaliated against his daughter by “taking adverse actions” against her dad, a third-party vendor. UBS immediately moved to dismiss the case because Mr. Simmons was not an employee of their company. The district court agreed and dismissed the case because he lacked standing (the right to sue) under Title VII. Mr. Simmons appealed.
Who Fits in the Zone-of-Interest?
The Fifth Circuit looked to a 2011 United States Supreme Court case, Thompson v. North American Stainless, LP, to see what Mr. Simmons needed to establish to have standing under Title VII. In Thompson, the plaintiff and his fiancée both worked for the same company. Mr. Thompson’s future bride filed a sex discrimination claim against the company and three weeks later, the company fired Thompson. Thompson claimed that the company retaliated against him for his fiancée filing the discrimination charge. The Supreme Court held that a third party could file for a retaliatory act taken against them for a charge filed by someone else, even if the person suing wasn’t the employee who engaged in the protected activity. In doing so, the court established the “zone-of -interest” test: If you are a “person claiming to be aggrieved” you can sue for retaliation. The court noted two important points in holding that Thompson was in the zone of interest and had standing to sue for retaliation based on his fiancee’s protected activity: 1) Thompson was also an employee of the company; and 2) the company used Thompson’s termination to harm the fiancée.
Back to the Father/Daughter Issue in the Fifth Circuit
In the Simmons case, Mr. Simmons tried to claim that the Supreme Court in Thompson recognized that Title VII was intended to protect third parties from retaliation, even if they were not the reporting party or initial claimant of discrimination. What UBS argued, and what the Fifth Circuit adopted, was that the statutory language of Title VII clearly shows that it only protects employees or applicants for employment from discriminatory or retaliatory acts. To expand the zone-of-interest beyond actual employees could result in some “absurd” situations such as having a stockholder sue a company in retaliation for the company dismissing one of its key employees. Since Mr. Simmons was not his daughter’s co-worker, he did not have standing to sue for retaliation.
What Should I Do?
This case may have presented a rare fact pattern, but it shows how seriously courts take retaliation claims. As we have stated before, filing a claim of discrimination does not give an employee a free pass to get away with anything and you should not be so afraid of a retaliation claim that you don’t manage your employees. But once someone files a complaint, you should take an extra hard look at any subsequent adverse employment actions involving that employee. And, as the Simmons and Thompson cases show, employers should resist the urge to take actions against coworkers with close connections to the complaining party as well.