Jottings By An Employer's Lawyer

Tuesday, June 29, 2010

Relational Retaliation: More Than A Mouthful, Another Step Forward?

Jon Hyman at Ohio Employer's Law Blog has been all over the reporting of the 6th Circuit decision of Thompson v. North American Stainless, whose latest iteration at that level was an en banc rejection of a retaliation claim brought by an employee fired three weeks after his fiancee' filed a charge of discrimination against the same company. Since he himself did not engage in any protected activity, the en banc court overturned a panel decision which had held he was within the zone of protection of the anti-retaliation provisions.

Jon is understandably concerned that the Supreme Court granted certiorari yesterday in this case, noting in what if anything is an understatement that "this Court has proven itself favorable to employee rights in retaliation claims." Check out his post. Supreme Court agrees to hear associational association retaliation claim, for links to his past coverage and his promise to follow this one through next term's argument and decision.

However, this is ultimately a question of statutory construction, which calls to mind Jackson v. Birmingham Board of Education, where the dispute was whether Title IX prohibited retaliation, although there was no anti-retaliation provision in the statute itself.  In a 5-4 decision, the court's opinion finding retaliation was prohibited was authored by Justice O'Connor.  Significantly one of the dissenters was Justice Anthony Kennedy. 

Although that was only five years ago, there will be four new justices on the Court that decides North American Stainless, Justices Roberts, Alito, Sotomayor and presumably Kagan. Substitute Sotomayor and Kagan for Souter and Stephens, Roberts for Rehnquist and Alito for O'Connor and if Kennedy's vote had remained the same Jackson would have gone the other way. So maybe North American Stainless will be better for employers than one might think on first blush.


Justice Kagan has recused herself from this case, leaving only 3 sure-fire left-leaning justices...Another factor that may suggest an employer-friendly majority decision is in the works.
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