Category Archives: Genetic Discrimination

Supreme Court Rules That Title VII Allows Third-Party Retaliation Claims

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Employees who are victims of third-party retaliation clearly state a claim under Title VII of the Civil Rights Act of 1964.

In Thompson v. North American Stainless, the United States Supreme Court held that the plaintiff-employee fell within the “zone of interest” to bring a claim under Title VII. There, Eric Thompson worked at the same employer of his then-fiancée (now wife), Miriam Regalado. Unfortunately, the employer fired Mr. Thompson after Ms. Regalado filed a sex discrimination claim with the Equal Employment Opportunity Commission. Mr. Thompson then filed his own complaint with the EEOC for retaliation under Title VII.

In its opinion, District Court for the Eastern District of Kentucky granted summary judgment for the employer on the basis that Title VII does not contemplate third-party retaliation claims. In doing so, the court stated:

The Court recognizes that retaliating against a spouse or close associate of an employee will deter the employee from engaging in protected activity just as much as if the employee were himself retaliated against. But, the Court also finds persuasive the reasoning that Title VII already offers broad protection in such situations by prohibiting employers from retaliating against employees who oppose unlawful employment actions or who participate in any manner in a proceeding under Title VII.

In its opinion, the Sixth Circuit (en banc) affirmed, reasoning:

Even under the most generous definition of “oppose” recognized by the Court in Crawford—”to be hostile or adverse to, as in opinion”—a plaintiff must engage in a discrete, identifiable, and purposive act of opposition to discrimination. Thus, such action is a critical component of a prima facie case of retaliation under Title VII. The plain text simply cannot be read to encompass “piggyback” protection of employees like Thompson who, by his own admission, did not engage in protected activity, but who is merely associated with another employee who did oppose an alleged unlawful employment practice.

The Supreme Court reversed and, in doing so, rejected the employer’s argument that Title VII claims should be limited to the person who was the subject of unlawful retaliation:

[W]e conclude that Thompson falls within the zone of interests protected by Title VII. Thompson was an employee of NAS, and the purpose of Title VII is to protect employees from their employers’ unlawful actions. Moreover, accepting the facts as alleged, Thompson is not an accidental victim of the retaliation—collateral damage, so to speak, of the employer’s unlawful act. To the contrary, injuring him was the employer’s intended means of harming Regalado. Hurting him was the unlawful act by which the employer punished her. In those circumstances, we think Thompson well within the zone of interests sought to be protected by Title VII. He is a person aggrieved with standing to sue.

The case was successfully argued by Professor Eric Schnapper of the University of Washington School of Law. Thanks to The Oyez Project, the oral argument can be heard here.

Workplace Discrimination Laws Broadened By The Genetic Information Nondiscrimination Act (GINA)

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Employees will soon gain protection against employers that utilize genetic testing or consider genetic background in making hiring, firing, promotion decisions. The Genetic Information Nondiscrimination Act (“GINA”) passed by Congress in March 2008 becomes effective law in the next coming weeks as this New York Times story details:
Law Seeks to Ban Misuse of Genetic Testing. On November 21, 2009, the Genetic Information Nondiscrimination Act takes effect for all employers with 15 or more employees and on December 7, 2009, the Act takes effect for insurers.

GINA forbids certain discrimination on the basis of genetic information and the collecting and sharing of certain genetic information. GINA only allows the collection of genetic information in a few limited circumstances:

(1) If the information is necessary for a certification requirement under the Family and Medical Leave Act or a state leave statute.
(2) If the information is used to monitor the effects of hazardous workplace exposure; or
(3) If the employer conducts DNA analysis as a forensic laboratory.

As science uncovers more and more genetic predispositions for disease, the importance of protecting employees from discrimination on the basis of their genes increases. Without GINA, employers would have a strong incentive to discriminate against talented employees whose genetic background threaten to drive up their health insurance premiums. Senator Ted Kennedy heralded the Genetic Information Nondiscrimination Act as “the first major civil rights bill of the new century.” Without GINA, as genetic screening became more common place, employees with “bad genes” might have found themselves unemployable.

GINA forbids discrimination not only on the basis of an employee or prospective employee’s genetic information, but also discrimination based upon genetic information of family members. A “family member” includes an individual’s spouse, dependent child and certain other relatives.

Employees should know that, unlike HIPAA and some other health laws that do not allow an employee to sue for violations, the Genetic Information Nondiscrimination Act confers a private cause of action on certain victims of genetic discrimination. Section 207 of the Genetic Information Nondiscrimination Act gives a cause of action to employees and prospective employees who are discriminated against on the basis of their genetic information or whose genetic information is improperly collected or shared.

GINA enables employees to recover lost wages, costs, attorney’s fees and, in some instances, punitive damages. The punitive damages provisions have ceilings. For example, if the employer has more than 500 employees, an employee may recover up to $300,000 in punitive damages. There is also a retaliation provision to GINA that gives a cause of action to any employee who opposes a policy or procedure that violates GINA.