Most retaliation claims in employment law involve an employee reporting a discriminatory act against them or a coworker. It’s unlawful for an employer to take adverse action against the employee in retaliation, such as firing the employee. However, what If the person being retaliated against isn’t an employee of the company? The Supreme Court has ruled that third-party retaliation is unlawful as well.
Discuss Your Case With a Skilled NYC employment attorney
Have you been retaliated against because someone else filed a discrimination or sexual harassment claim against his or her employer? If so, you may be the victim of third-party retaliation. The NYC employment attorneys at Lipsky Lowe LLP know how to hold employers who engage in third-party retaliation accountable. Contact us today to schedule your initial consultation and learn more about how we can fight for your rights.
What Is Third-Party Retaliation?
Suppose your friend, also your co-worker, submitted a claim against your employer for sexual harassment in the form of your manager sending your friend unwanted, sexually explicit text messages. Your manager is angry about being exposed but knows everyone is watching what actions he’ll take regarding your co-worker. Instead, your manager targets you and demotes you to a lower position, claiming that it’s because your performance isn’t up to company standards.
In this situation, you may have the right to take legal action against your employer for retaliating against you, a third party. In third-party retaliation claims, an employer doesn’t retaliate against the person who submitted a complaint against the employer but on someone else in his or her “zone of influence.”
Employees targeted with third-party retaliation are protected under the Title VII of the federal Civil Rights Act. If you’ve been retaliated against because of a complaint someone else filed, you can pursue your claim against your employer. Even if you weren’t the person who engaged in the protected activity, this is the case.
My Friend Or Family Member Filed a Complaint, and I Got Fired. What Can I Do?
Do employees have a right to bring a legal claim for the protected activity of a third party? The Supreme Court has ruled that employees who’ve experienced third-party retaliation have a right to pursue remedies and compensation through a retaliation claim. On January 24, 2011, the Supreme Court expanded the anti-retaliation protection under Title VII of the Civil Rights Act to qualifying third parties in Thompson v. North American Stainless, LP.
In this case, a man, Mr. Thompson, and his fiancee, Ms. Regalado, were employees of the same company. Ms. Regalado filed a claim of sex discrimination against her employer. The employer fired Mr. Thompson three weeks after the claim was filed. He filed a retaliation claim under Title VII of the Civil Rights Act with the Equal Employment Opportunity Commission (EEOC). Eventually, he brought a civil lawsuit against his employer, claiming that he was fired as a way to retaliate against his fiancee because she filed a discrimination claim with the EEOC.
The Supreme Court ruled that a third party does have a right to bring a retaliation claim when that person is “aggrieved” under Title VII. They found that Mr. Thompson had been aggrieved because he was within the “zone of interest” protected by Title VII because he was an employee. Mr. Thompson wasn’t an accidental victim and by firing him, the employer punished Ms. Regalado for her complaint.
Do I Have a Valid Third-Party Retaliation Claim?
If your employer has taken adverse action against you because someone close to you filed a lawsuit against them, you may have a valid claim against your employer. With third-party retaliation claims, you will need to establish the following elements:
- Your co-worker, friend, or family member engaged in protected conduct, such as reporting a discrimination claim,
- You suffered an adverse employment action, and
- There is a causal relationship between the two events
When you can show a prima facie of third-party retaliation, the burden will shift to your employer. Your employer would need to prove that they had a legitimate, non-retaliatory reason for taking adverse employment action against you. When that burden has been met, the burden will shift back to you to show that the justification provided by your employer isn’t the real reason they fired you, but was simply a pretext for retaliating against you.
What Constitutes an Adverse Employment Action?
The adverse employment action you’ve experienced through third-party retaliation doesn’t need to be as serious as being fired, but can also include all of the following:
- Refusing to hire you
- Demoting you to a lower position
- Denying you a pay raise you’ve earned
- Reducing your pay
- Denying you employment benefits
- Physically or emotionally abusing you
- Transferring you to a less desirable division or position
- Giving you unwarranted negative performance reviews
- Subjecting you to any form of employment discipline
If you’ve suffered retaliation in any of the forms above, a court may find that you were the victim of an adverse employment action.
What Is the “Zone of Interest” in Third-Party Retaliation Claims?
In the Thompson case, the Supreme Court established a “zone of interest” test to determine who can bring third-party retaliation claims. The third parties must be in a “zone of interest” with the employee who originally complained of discrimination or harassment. If you are the person who is claiming to be aggrieved, you have “standing” to sue for retaliation.
Standing means the legal right to sue the defendant. If you are also an employee of the same company and the company used an adverse action against you to hurt the person who originally filed a complaint, you likely have legal standing to sue your employer. The law is less clear for those who are not employees of the same company.
Contact an NYC Third-Party Retaliation Attorney
You may have a valid third-party retaliation claim if you’ve been retaliated against to punish someone else who filed a claim against your employer. These types of claims can be complicated and it’s important that you reach out to an experienced attorney as soon as possible. Contact Lipsky Lowe LLP to schedule your free case evaluation and learn more about your rights.