Constitution Daily

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December 17, 2010 by Donald Applestein Esq.


Miriam and Eric were engaged and both worked for North American Stainless.  Miriam believed that Stainless had discriminated against her on the basis on gender and she filed a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC).

Their engagement was common knowledge.  Shortly after Stainless was notified of her Charge, Eric was fired.  Section 704 of Equal Rights Act prohibits employers from retaliating against employees because they have engaged in protected activity, such as filing a Charge.  The issue: is Eric an “aggrieved person” within the meaning of the statute and where does this leave him?

On December 7th the Supreme Court heard oral argument, and the Justices and counsel wrestled with this case. Among the issues were:

  • Can Eric sue for damages under Article III of the Constitution?
  • What does “aggrieved person” mean?
  • If employees, other than the employee who filed the Charge are entitled to protection, how far does that protection extend?  Immediate family? Close friends?  Employees you have lunch with?  Everyone in the company?
  • How does an employer protect itself from such charges of retaliation?
  • Who decides all these issues?

At first blush, this case would appear to be a lawyer’s delight.  Perhaps if we step back and apply some good old common sense, things become a bit clearer.

First, we need to start with the overall goal of the Title VII of the Civil Rights Act.  It was to bring us closer to the goal of equal opportunity for all, in the workplace regardless of race, religion, sex, national origin etc.   It prohibits employers from taking adverse employment actions based on an employee’s protected traits.  It also prohibits employers from retaliating because an employee who has engaged in protected activity – here the filing of a Charge.

Here, it was not Miriam who was fired but her fiancé.  Should he be afforded protection?  Fashioning a method to apply a result is not so easy.  Again, some common sense will help. Here are the questions we should ask:

1. Given the facts, how many potential wrongs are there?


  • First, Miriam has been wrongly discriminated against (assuming her Charge is valid).
  • Second, Miriam has also been wronged by Eric’s firing because Stainless’ action has the tendency to dissuade her, and other employees from asserting their rights under the Act. (Justice Kennedy asked if it would be a violation for an employer to announce that it would discharge two employees for every Charge filed. What’s your opinion?  Would that policy be consistent with the goals of the Act?)
  • Third, Eric has been wronged because he is out of a job, through no fault of his own.  And, his firing would have the effect is dissuading other employees from asserting their statutory rights.  Does anyone believe that he shouldn’t have some course of redress?  And, therein lays the answer to the question of Article III jurisdiction.  Do we as a society simply tell Eric, “…tough luck fellow.  You were engaged to the wrong gal…”?
Tough luck fellow. You were engaged to the wrong gal.

2. How Far does this protection go?

Justice Alito was concerned with how far does this protection to “non-Charging” employees extend? Again, the application of common sense helps.  Should it protect all “family”? Or close friends?  Why not distant friends?  Employees on that shift or in a particular department?  Why not all employees at that plant?

3. How can we protect employers?

Justice Alito was also concerned with how does an employer protect itself from spurious retaliation allegations?   This gets to the employer’s intent – here, why was Eric fired?   The answer lies in well-established Title VII case law.  Under McDonnell Douglas, once an employee establishes that he/she is in a protected class (here, female) and that an adverse action has been taken, the burden shifts to the employer to articulate a “non-discriminatory” reason for the adverse action.  If they can’t, there is liability and if they can, there is no liability.

4. Who Decides All This?

Finally who decides all these issues?  How do we decide who is an “aggrieved person”?  How far does protection extend?  How does an employer protect itself?  The same way we decide other factual issues – we rely on the trier of fact – a jury, or in some cases the trial judge.  This is no different than other cases, though Justice Scalia expressed some concerns about employers always having to go to juries.  The Court needs to set forth some guiding principles, given the purpose and goals of the Act.  And thereafter let the trier of fact make the application of those principles.

Will it be easy to articulate them or to apply them?  No.  But who better than you and me?

Mr. Applestein was a litigation attorney with the EEOC where he prosecuted “pattern and practice” cases

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