When is Third Party Retaliation an Actionable Claim?
The Supreme Court has held that an employer can be found liable for terminating an employee when that employee’s fiance has engaged in a protected activity (Opposing discrimination, complaining about harassment, etc.) under Title VII (Discrimination). So what relationship needs to exist between the Third Party and the individual engaging in the protective activity to have an actionable claim? The Supreme Court has provided a factor test: Justice Scalia suggests that there are two factors that determine whether third-party retaliation is unlawful under Title VII: 1. The nature of the relationship; and 2. The severity of the employer’s action. Thus, he states: “We expect that firing a close family member will almost always meet the Burlington standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so.”