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Retaliation Claims are More Difficult for Employers in Light of High Court’s Decisions

Lerch Early's Legal Update

Two recent Supreme Court decisions and a Court of Appeals of Maryland decision issued less than three months apart have made it more difficult for employers to prevail when employees allege that they have been fired in response to complaining about discrimination or harassment.

First, in Thompson v. North American Stainless, L.P., the Supreme Court upheld so-called “association” retaliation claims. Miriam Ragalado and her then fiancé, Eric Thompson, both worked for North American Stainless. Ragalado filed a discrimination claim with the EEOC alleging discrimination based upon her sex. Several weeks later, the company fired Thompson. Subsequently, Thompson filed his own claim of discrimination with the EEOC, and his claim found its way to the Supreme Court. The issue was whether Thompson’s firing constituted unlawful retaliation and, if it did, whether Thompson had a right to bring his own claim under Title VII, which prohibits employment discrimination based on race, color, religion, sex and national origin.

“Zone of Interests” Protection

The Supreme Court concluded that the company’s reprisal against Thompson in response to his fiancée’s discrimination charge violated Title VII, and that Thompson fell within the “zone of interests” protection and therefore, he had standing to sue. The Supreme Court refused to adopt a bright line spelling out when reprisals against third parties are unlawful. The Supreme Court explained that terminating a close family member would probably violate Title VII, but terminating an acquaintance of a complaining party likely would not be deemed unlawful. The Supreme Court reemphasized that the test to be applied is an objective one.

Several months later, in Kasten v. Saint-Gobain Performance Plastics Corporation, the Supreme Court held that oral complaints -- as well as written complaints -- were sufficient to trigger the protection of the anti-retaliation language under the Fair Labor Standards Act (FLSA). Specifically, the issue before the court was whether an oral complaint fell within the phrase “filed any complaint” under the meaning of the FLSA. The Supreme Court held that oral complaints could be protected under the FLSA if they were “sufficiently clear and detailed for a reasonable employer to understand [them], in light of both content and context, as an assertion of rights protected by the statute and a call for their protection.” The Supreme Court, however, did not consider the question of whether the complaint would be protected if it were filed only with the employer, as opposed to with the Department of Labor.

Protected Activity was a Motivating Factor

In addition to these two Supreme Court cases, on March 21, 2011, in Ruffin Hotel Corporation of Maryland, Inc. v. Gaspar, the Court of Appeals of Maryland ruled that an employee who asserted that she was terminated in retaliation for opposing a fellow employee’s unlawful harassing conduct needed to demonstrate only that her protected activity was a motivating factor--as opposed to a determining factor--in the decision to terminate her employment in order to prevail under Maryland’s anti-discrimination statute.

Viewed collectively, the decisions in Thompson, Kasten and Gaspar will make it more difficult for employers to enable retaliation cases to be dismissed prior to trial, which probably will increase the costs of defending these cases and create significant exposure for employers. For four key actions employers can take to reduce their risks of retaliation claims, click on “Key Actions to Prevent Retaliation Claims.”

Marc Engel is an employment attorney at Lerch, Early & Brewer in Bethesda, Maryland who advises clients on employment issues, litigates employment and business disputes, and counsels companies and organizations on litigation avoidance strategies. For more information on how to minimize retaliation claims, contact Marc at (301) 657-0184 or


This content is for your information only and is not intended to constitute legal advice. Please consult your attorney before acting on any information contained here.


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