Supreme Court Weighs Limits On Retaliation Ban

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Federal law makes it illegal to retaliate against employees who file discrimination charges. But can your boss legally retaliate by firing your fiance or a family member? That was the question before the U.S. Supreme Court on Tuesday.

Eric Thompson and Miriam Regalado met and became engaged while working at North American Stainless steel in Kentucky. She was a rare female supervisor and filed a sex discrimination claim with the Equal Employment Opportunity Commission. She alleged that she had twice been demoted because of her gender and that she was not getting the same raises as men in her position. Three weeks after the EEOC notified the company of the charge, Regalado's fiance, Eric Thompson, was fired from his job as a metallurgical engineer.

Thompson sued, claiming he had been illegally fired to punish his fiancee and to discourage others from making discrimination claims.

The couple talked about the case on the steps of the Supreme Court on Tuesday.

"This was sending a message to other employees," said Regalado. "They're saying, 'Don't you dare do what she did; otherwise, we'll take care of you like we did with her.' "

"This is the worst part of the whole ordeal, the message and intimidation," added Thompson.

Drawing A Line

Inside the courtroom, their lawyer, Eric Schnapper, faced an immediate question from a suspicious Justice Antonin Scalia, who wanted to know if the pair is still engaged.

Justice Ruth Bader Ginsburg interjected, "They're married."

To which lawyer Schnapper added, "And they have a lovely 2-year-old daughter."

"Oh, good," said a delighted Scalia. But the justice wondered why Regalado hadn't herself sued for her fiance's firing.

Because it would be difficult, and maybe impossible, for her to get money damages for someone else, answered Schnapper.

Justice Samuel Alito then turned to another question. "A fiance is a relatively strong case," he said, but added that he could "imagine a whole spectrum of cases" in which the two employees in question were just dating, or had once dated, or were just good friends. Where, he asked, do you draw the line?

That question continued to be front and center when the government's lawyer, Acting Principal Deputy Solicitor General Leondra Kruger, representing the EEOC, rose to argue in support of the couple.

Alito asked her to "put yourself in the shoes of the employer." Do you have to keep a journal of employee relationships, he asked, to know who you can discipline or fire without fear of a lawsuit?

"Quite the contrary," replied Kruger. If the employer doesn't know about the relationship, she said, it's irrelevant.

Chief Justice John Roberts continued to ponder the line-drawing issue. "How are we supposed to tell, or how is the employer supposed to tell, whether the employee is close enough or not?"

Employers don't want to go before a jury to defend every employment decision, added Scalia. They "want a safe harbor." Why couldn't the court hold that illegal retaliation is limited to members of the family and fiances?

Kruger responded that this would be "an essentially arbitrary rule."

"I know," replied Scalia, seeming to suggest that an arbitrary line is better than no line. But Kruger said there is no way to draw a bright line. While most illegal retaliation has involved a parent and child or husband and wife, she said, in one case it involved a close friend.

Who Should Be Able To Sue?

Defending North American Stainless, lawyer Leigh Gross Latherow emphasized the need to limit retaliation suits. Quoting a brief submitted by the Chamber of Commerce, she said that the number of retaliation cases filed with the EEOC has nearly tripled over the past 17 years. Even though many of these claims are not borne out, she said, they are expensive to defend.

Justice Sonia Sotomayor inquired as to whether Regalado could have sued on her own behalf, claiming that her fiance's firing amounted to illegal retaliation against her that justified damages for him.

Latherow said yes, Regalado could have sued for her fiance's firing.

Sotomayor wryly observed: "I would like to see that case next ... and see what position you take the next time. Are you willing to commit your company to that today?"

Latherow hesitated, and Sotomayor took pity on her.

"I won't do that to you," said the justice, moving on to another question.

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