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Third-Party Retaliation

21 July 2008

The National Law Journal

The premise of protection against retaliation is simple: If you complain, you cannot be fired or disciplined because of your complaint. Most, though not all, federal anti-discrimination statutes contain provisions forbidding such retaliation by one’s employer. While these provisions have existed for decades, they are now being increasingly invoked in a new context: by disciplined employees who had not themselves complained about discrimination but were connected in some way to another employee who did. Plaintiffs in such suits have been primarily family members spouses, siblings, fiancés—who happen to work for the same employer.

The U.S. Supreme Court is set to hear a case next term that would extend such third-party retaliation claims even further—to unrelated co-workers who had participated in a company’s internal investigation of a discrimination complaint but who had not themselves ever objected to perceived discrimination. Given the Supreme Court’s recent tendency to read broadly the anti-retaliation provisions of civil rights statutes—and even to find a prohibition against retaliation when the statute itself is silent—a major expansion of employment discrimination law may be lying just over the horizon.

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