Today the Supreme Court issued a landmark decision that prohibits employers from retaliating against a whistleblower’s family members or other associates. The decision in Thompson v. North American Stainless LP is unanimous, and reverses an en banc decision of the Sixth Circuit Court of Appeals in Cincinnati, Ohio. The decision makes clear that victims of retaliation do not have to show that they themselves engaged in any “protected activity.” Instead, they must show that they are “person[s] aggrieved” by unlawful retaliation. The Supreme Court declines to identify any “fixed class of relationships for which third-party reprisals are unlawful.” Instead, courts will have to decide the application in each case, based upon “the particular circumstances.” In the decision, the Supreme Court relies heavily on its 2006 decision in Burlington N. & S. F. R. Co. v. White, 548 U. S. 53. The Court today reiterates that employers are not allowed to take any action that would dissuade a “reasonable worker” from engaging in protected activity. The Court recognizes that this standard “must be construed to cover a broad range of employer conduct.” The Court said that it is “obvious” that allowing employers to fire a fiance would discourage employees from raising concerns about violations of the law.
Until recently, I thought this issue had been well settled. The EEOC had long held that employers may not retaliate against those associated with others who engaged protected activity. Courts, including the Sixth Circuit, had agreed that spouses, for example, had a right to sue when they suffered retaliation prompted by the other spouse’s protected activity. See, for example, EEOC v. Ohio Edison, 7 F.3d 541 (6th Cir. 1993). The National Labor Relations Board (NLRB) had also held that retaliation against relatives was against the law. See NLRB v. Advertisers Mfg. Co., 823 F.2d 1086, 1088-89 (7th Cir. 1987). Since then, a series of more hostile appellate court decisions have barred such claims. Today, that era of hostility is over.Continue Reading Supreme Court protects whistleblower’s family from retaliation
and reinstated the whistleblower claim that my client Harry Smith made against the trucking company CRST. In the photo, Harry Smith stands between his wife and fellow truck driver Scooter McNutt. Smith was fired right after he threatened to take the company’s defective trailer to the Department of Transportation for inspection. The Department of Labor had dismissed Smith’s complaint against CRST after the Occupational Safety and Health Administration (OSHA) sent him a dismissal notice, showing that a copy was sent to me, his lawyer. However, OSHA did not actually send me the copy of the dismissal notice until after Smith’s time to appeal had expired. Smith does not recall receiving the dismissal notice at all. CRST and the Department of Labor (DOL) tried to blame Smith for failing to appeal on time. The Sixth Circuit says today that, “it appears to us that it falls even more heavily at the feet of OSHA, in failing to send the notice to Renner for some two months after the fact, despite the indication to Smith to the contrary.”