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Did drawing the line in associational retaliation cases just get a little bit harder?

February 18th, 2014  |  Kathy Kapusta

When the U.S. Supreme Court, in Thompson v N. Am. Stainless, LP, upheld a third-party retaliation claim filed by an employee who was fired three weeks after his fiancée filed a formal complaint of harassment against their employer, it found it “obvious” that a “reasonable worker might be dissuaded from engaging in protected activity” if she knew that her fiancé would be fired. The Court acknowledged, however, potential line-drawing difficulties in less clear cases.

Somewhere between close friend and casual acquaintance. A recent decision from the federal district court in New Hampshire may have just made that line even more difficult to draw. In that case, the EEOC successfully advanced a retaliation claim on behalf of an employee who was allegedly fired after her “very close friend” and former coworker threatened to file a sexual harassment claim against their employer. Observing that the relationship between the two women “exists somewhere in the fact specific gray area between close friend and casual acquaintance,” the court found that the agency’s claim was sufficient to survive a motion for judgment on the pleadings.

Both women worked for an oil company. The coworker was allegedly sexually harassed by the owner who frequently commented on her breasts, told her he wanted to play with them, liked to watch her laugh so he could watch them bounce up and down, and offered to show her his “night crawler.” At some point, his comments progressed to inappropriate touching and culminated in an incident in which he trapped her behind her desk and fondled her. She resigned the next day.

EEOC steps in. The coworker subsequently informed the company, through her attorney, that she was planning to file a discrimination charge against it. Less than a month later, the employee was fired, purportedly because “it was not working out.” The EEOC then sued the company on behalf of the two women, alleging that the owner sexually harassed them and fired the employee in retaliation for her coworker’s complaint about the harassment.

Unsettled jurisprudence. The company argued that the EEOC sought to extend an unsettled jurisprudence beyond reason. Specifically, the employee did not claim to have engaged in protected activity; rather she contended that she was fired in retaliation for her friend’s protected conduct.

Is close friendship enough? The employer further argued that based on Thompson, the two women were not close family members and were not sufficiently close such that termination, or threatened termination, would have dissuaded a reasonable worker from making or supporting a charge of discrimination. The court, however, rejected this as premature. Here, the complaint alleged that the two women were close friends. Not only did they work together at a prior company, the coworker was influential in procuring the employee’s job with the oil company. Moreover, the employee displayed birthday and mother’s day cards from the coworker on her desk alongside pictures of the coworker’s young daughter and the two women together.

The complaint also alleged that the owner knew of this close friendship as was demonstrated by his comment to the employee proposing a “play date” between himself, the employee, the coworker, and the coworker’s daughter. In addition, when he wanted to contact the coworker after she quit, he asked the employee for her personal email address. While the court could not say that such a friendship definitely supported a successful claim, it also could not say as a matter of law that it did not. As a result, it denied the employer’s motion for judgment on the pleadings.

Cautionary note. The court cautioned, however, that it might revisit the issue upon a proper motion after discovery. In light of the fact that the employer in Thompson warned that expanding third-party reprisal suits would place an employer at risk any time it fires any employee who happens to have a connection with a coworker who files an EEOC charge, it may be worth keeping an eye on any future developments in this case.