Employer fires whistleblower’s fiance: illegal retaliation?

by Kurt Schulzke

Retaliation is an unfortunate though predictable side effect of blowing the whistle on corporate wrongdoing.   Most whistleblowers know to expect retaliation.  Most also think — or hope — that retaliation is illegal and that they can “get justice” by suing.  Sometimes they can.

Some whistleblower laws — the False Claims Act, Dodd-Frank SEC Whistleblower Program, the Sarbanes-Oxley Act and Title VII of the Civil Rights Act of 1964 among them —  contain anti-retaliation provisions designed (at least in theory) to punish offending employers and/or remedy the retaliatory damage inflicted on whistleblowers.  In some (but not all) cases, whistleblowers can try for some minimal relief by suing to recover lost pay, employment position, and attorneys fees.

In interpreting the meaning and scope of prohibited “retaliation” under the False Claims Act (which Congress used as a template for drafting Dodd-Frank), courts have frequently cited Title VII case law. See, e.g., Wilkins v. St. Louis Hous. Auth., 314 F.3d 927, 933 (8th Cir. 2002); Norbeck v. Basin Elec. Power Coop., 215 F.3d 848, 852 (8th Cir. 2000); U.S. ex rel. Siewick v. Jamieson Science & Eng’g, Inc., 191 F. Supp. 2d 17, 19 (D.D.C. 2002); U.S. ex rel. Lamar v. Burke, 894 F. Supp. 1345, 1347 (E.D. Mo. 1995).  Presumably, courts will also use Title VII rationale in interpreting retaliation against SEC whistleblowers under Dodd-Frank.

So what happens if an employer retaliates against the family or friends of a whistleblower?   The U.S. Supreme Court answered this question, in January 2011, in Thompson v. North American Stainless, LP, a case that began with an EEOC claim of sex discrimination.  In Thompson, the Court held that an employer can be held liable for retaliating against the fiance of a whistleblower employee where the employer harms the fiance as a means of retaliating against the whistleblower.

For the majority, Justice Scalia wrote:

Title VII provides that “[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has made a charge” under Title VII. 42 U. S. C. §2000e–3(a)… It is undisputed that Regalado’s filing of a charge with the EEOC was protected conduct under Title VII. In the procedural posture of this case, we are also required to assume that NAS fired Thompson in order to retaliate against Regalado for filing a charge of discrimination. This case therefore presents two questions: First, did NAS’s firing of Thompson constitute unlawful retaliation? And second, if it did, does Title VII grant Thompson a cause of action?

[T]itle VII prohibits discrimination on the basis of race, color, religion, sex, and national origin“‘with respect to . . . compensation, terms, conditions, or privileges of employment,’” and discriminatory practices that would “‘deprive any individual of employment opportunities or otherwise adversely affect his status as an employee.’” In contrast, Title VII’s antiretaliation provision prohibits an employer from “‘discriminat[ing] against any of his employees’” for engaging in protected conduct, without specifying the employer acts that are prohibited. Based on this textual distinction and our understanding of the antiretaliation provision’s purpose, we held that “the antiretaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment.” Id., at 64. Rather, Title VII’s antiretaliation provision prohibits any employer action that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”

We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.

Bottom line? Employers should think twice (or more) before lashing out at friends and family of whistleblowers. Such “other casualties” of the whistleblower wars are protected, too, as well they should be. Whistleblowers — of whatever variety, SOX, SEC, False Claims Act, or Title VII — who have experienced such collateral damage may want to call an attorney to discuss the possibility of a retaliation claim.

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