By Robert Barnes
Washington Post Staff Writer
Tuesday, December 7, 2010; 7:13 PM
Eric Thompson thinks his firing was more than coincidence: Three weeks after his fiancee filed a discrimination complaint against their mutual employer, he got a pink slip.
If it had been Miriam Regalado - his fiancee and now wife - who had been fired, she would have been protected by federal laws that keep employers from dismissing workers who allege illegal actions.
But what about Thompson?
That was the question before the Supreme Court on Tuesday, and justices seemed to think it defied an easy answer.
Thompson complained about his 2003 firing to the Equal Employment Opportunity Commission, which gave him the go-ahead to file suit against his former employer, North American Stainless, contending that he too was protected by Title VII of the Civil Rights Act of 1964.
But a federal appeals court said he was not covered because he personally "did not oppose an unlawful employment practice, make a charge, testify, assist or participate in an investigation."
The Obama administration disagrees with the lower court, and is supporting Thompson.
"When an employer fires an employee as a means of retaliating against a relative or close associate who has filed an EEOC charge, the employee who has been fired is entitled under Title VII to go to court and seek appropriate remedies," said Leondra R. Kruger, a deputy solicitor general.
But the law doesn't say that, answered Leigh Gross Latherow, an attorney for North American Stainless. It protects the person who filed the complaint, not those on the sidelines, the company said.
Latherow said Thompson was fired because of his job performance and a cheeky memo he wrote to superiors complaining about his pay. He did not mention his fiancee's discrimination complaint, she said.
Thompson's attorney said the purpose of the federal law is to make sure a company cannot use the threat of firing someone to keep employees from complaining about illegal practices. That includes members of a person's family or their close associates, said Eric Schnapper, who is also a University of Washington law professor.
"They singled out Ms. Regalado and Ms. Regalado's fiance," Schnapper said. "They didn't go fire anybody else's fiance."
But Justice Samuel A. Alito Jr. wondered if the betrothed were included, how far does the law extend.
"Does it include simply a good friend?" Alito asked. "Does it include somebody who just has lunch in the cafeteria every day with the person who engaged in the protected conduct? Somebody who once dated the person who engaged in the protected conduct?"
Schnapper said the person fired would have to prove the company's intent was meant to punish the person who complained. And then the person would have to show that the retaliatory action was sufficiently serious that it would likely dissuade a reasonable person from filing a complaint.
Justice Antonin Scalia continuously put himself in the role of the employer and said he would want a clear rule on who he "had to treat with kid gloves."
But Kruger said it would be impossible for the court to set a "hard and fast rule" spelling out all the possibilities. Instead, she said, it should employ a rule it has set in other retaliation cases in identifying action that would have an adverse impact on the person making the complaint.
The case is Thompson v. North American Stainless.