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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.

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Last September, EEOC Investigator Ricardo Jones told The Black Star News that, “The EEOC is not investigating African-American complaints from New York to North Carolina.” At the time, Black Star News writer Donald Winfield predicted that the EEOC would fire Jones.  Now that prediction is coming true. Days before Thanksgiving, the EEOC placed Jones on administrative leave -- the omen of impending discharge. Jones is preparing to appeal his separation.

Firing a civil rights whistleblower on the eve of the Dr. Martin Luther King, Jr., holiday adds irony to an already sad tale of retaliation.  Many whistleblowers of color depend on the EEOC to protect their rights, especially in the federal service were whistleblowers do not normally have access to trials by jury. To hear that EEOC would fire Jones after he accused the agency of failing to do its job weakens the cause of ending discrimination through the administrative process.

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The federal Equal Employment Opportunity Commission (EEOC) has issued proposed amendments to its rules for handling complaints by federal employees.  The EEOC's press release identifies changes that will allow federal agencies to implement pilot programs, and that would require agencies to follow EEOC regulations and directives. The pilot programs would, "grant agencies variances from particular provisions" of federal regulations. Another change would clarify that agencies could dismiss charges that proposed agency actions are retaliatory only if the proposed action is not itself materially adverse, that is, that it would dissuade a reasonable employee from engaging in protected activity. The proposed rule would require agencies to notify complainants when their complaints have been under investigation for over 180 days.  At this point, the employee would have the right to request an EEOC administrative hearing (or file in federal court).  The notification would have to inform employees of the option to request an EEOC hearing. The proposed regulation would also extend the time agencies have to comply with an EEOC order from 60 days to 120 days. Members of the public are invited to submit comments by February 19, 2010.

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The federal Equal Employment Opportunity Commission (EEOC) has issued a new guidance on what is legal and advisable for severance agreements. As more and more Americans face layoffs, this new guidance is most timely.

Of particular interest for whistleblowers, the EEOC guidance makes clear that, "no agreement between you and your employer can limit your right to testify, assist, or participate in an investigation, hearing, or proceeding conducted by the EEOC under the ADEA, Title VII, the ADA, or the EPA. Any provision in a waiver that attempts to waive these rights is invalid and unenforceable." The guidance cites the EEOC Enforcement Guidance on Non-Waivable Employee Rights Under EEOC Enforced Statutes (April 1997), and 29 C.F.R. § 1625.22(i)(2). The guidance also states that no agreement can restrict an employee's right to file a charge of discrimination.

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