Thompson v. North American Stainless.

     It was a cold, crisp, clear morning at the United States Supreme Court today.  Flags were at half-mast for Pearl Harbor Day.  The U.S. Capitol Dome was gleaming white across the street, having just shrugged off the morning alpenglow.  The Court heard oral arguments in the case of Thompson v. North American Stainless.

     In Carroll County, Kentucky, Petitioner Eric Thompson worked as a metallurgical engineer for North American Stainless from 1997 until 2003, when he was fired from his job, allegedly for performance-based reasons.  Thompson surmised that he was fired in retaliation because his fiancée at the time (and current wife) - Miriam Regalado – had filed a complaint of gender discrimination against the company with the Equal Employment Opportunity Commission.  Stainless fired Thompson 3 weeks after Regalado filed her discrimination complaint.

     Thompson filed his employment discrimination claim under the Civil Rights Act of 1964.  The statute forbids an employer from retaliating against an employee for engaging in a protected activity.  Filing a complaint of gender discrimination, as Thompson’s fiancée did, with the Equal Employment Opportunity Commission is an example of a protected activity.

     Thompson was not engaged in a protected activity that resulted in retaliation.  The issue the Court must decide in this case is whether Thompson is protected from retaliation by Stainless due to Regalado’s protected activity and therefore, has a right to sue under the Civil Rights Act as a third party, based on his close association with Regalado, who was engaged in protected activity.

     The Justices were skeptical of who would be eligible for the kind of 3^rd party right to sue that Thompson is claiming.  At times, the hearing more resembled an episode of Seinfeld than of Law and Order.  Alito kept asking who would be eligible, someone you had lunch with, someone you dated, someone you tell secrets to – he seemed perplexed. 

     Justice Sotomayor also wondered who could sue as a 3^rd party under Thompson’s theory, asking what if they're just coworkers, but a coworker who has expressed sympathy for the discriminated person, has spoken about them in a favorable light, or has tried to defend them. Would that person be protected from being fired?

     Currently, there is a split among the federal courts on third-party retaliation claims under the Civil Rights Act – half of them do not recognize third party retaliation claims, while the rest allow this kind of lawsuit.   This case will give the Court the chance to resolve this discrepancy.