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ASK THE ATTORNEY: Michael R. Lied

Question of the Month:
It seems that courts are expanding retaliation protections. Do these decisions mean
our organization has to change its human resource practices?

Answer:

The question raises serious issues for employers to consider. Do you know who your
employees are dating? When you review and approve disciplinary actions, is a review of the
employee’s social network on your checklist? Do you keep track of inter-office romances and
relationships? Although troubling trends in retaliation law seemingly prompt you to do exactly that,
careful application of good human resource practices remain the best course.

The trend began in 2006 with the U.S. Supreme Court’s decision in Burlington Northern & Santa Fe
Railway Co. v. White. That decision opened the gates to retaliation claims based on employer actions
which “dissuade a reasonable worker from making or supporting a charge of discrimination.” After
Burlington, the question is simply whether the employer’s action would deter a worker from pursuing a
claim, not whether the action materially altered the conditions of employment. In that case, the
employer initially suspended the employee without pay for insubordination, but reversed its decision and
paid the employee for her lost income. Despite the reversal, the Court still found the action sufficient to
“dissuade a reasonable worker” and upheld the retaliation claim. The Court also noted that the analysis
is at least partially subjective and context based, recognizing, for example, that a shift change which
might not affect most workers could well dissuade a single mother burdened with difficult childcare
obligations.

The Supreme Court broadened retaliation protections again early this year in Crawford v. Metropolitan
Government of Nashville. In that case, the Court expanded the definition of “opposing” sexual
harassment to include truthfully answering questions posed by the employer investigating alleged
harassment. The lower court held that opposition for purposes of retaliation required voluntary,
assertive conduct to warrant protection, but the Supreme Court disagreed, holding that there was no
reason to continue a “freakish rule protecting an employee who reports discrimination on her own
initiative but not one who reports the same discrimination in the same words when her boss asks a
question.”

The next issue before the Supreme Court likely will involve “associational retaliation,” raising the
question of whether retaliation protections extend to relatives and close associates of persons who
oppose illegal discrimination or harassment. In Thompson v. North American Stainless, the U.S. Circuit
Court of Appeals for the Sixth Circuit recently addressed that issue head-on, and literally came down on
both sides of it.

In Thompson, the appellate panel addressed whether the fiancé and co-worker of a woman who had
protested harassment could claim retaliation when he was allegedly discharged because of her
protected activity. The court’s panel held that he could, stating that Title VII prohibits retaliatory action
against employees “not directly involved in protected activity but who are closely related to or associated
with those who are directly involved.”

That panel decision was reviewed by the entire court of appeals and, in a split decision, reversed in
early June. The majority held that the plain language of the statute “does not leave room” for a
retaliation claim by friends, associates, or relatives.

Although the court’s change of direction means that no court of appeals has yet endorsed this type of
associational retaliation, it now seems clear that the claim in the other direction would be accepted.
Although the male fiancé has no claim based on her action, she would have a retaliation claim based on
his termination, because it would be assumed to “dissuade” the ordinary worker. That result is
consistent with decisions in other courts of appeal, including the Seventh Circuit, which has jurisdiction
over Illinois. The plaintiff would still be required to prove that her protected activity caused her fiancé’s
termination, but the traditional focus limiting the analysis to actions against her as the person opposing
the illegal conduct is probably now gone. Presumably, the same result would flow from action against
the opposing parties’ relatives and close associates as well as fiancés.

There are limits on the associational information an employer can or should pursue. The Illinois
Personnel Records Review Act prohibits an employer from gathering or keeping “a record of an
employee’s associations, political activities, publications, communications or non-employment activities,
unless the employee submits the information in writing or authorizes the employer in writing to gather or
keep the information.” 820 ILCS 40/9 (2008). Although untested in courts, this provision arguably
prevents employers from reviewing information on employee associations in making personnel
decisions.

Do these new decisions require changes in human resource practices? Not if your current practices are
proper. These decisions do reinforce the importance of careful documentation of all discipline decisions,
not just those involving complaining employees. Avoiding inflated, friendly evaluations and training
supervisors to properly address personnel issues and document their actions will be a priority. The key
to defeating associational retaliation claims will be to demonstrate that the challenged decision was
appropriate and rooted in proper practices. Having the evidence to do that is now even more important,
as the scope of actions potentially seen as retaliatory is expanding. If you are not currently following
these practices consistently, you now have even more reason to do so. Of course, if you have concerns
about these issues, ask your lawyer.

Michael R. Lied focuses his practice in the areas of labor and employment law
and related litigation and immigration law, representing employers. He attended
the University of Illinois where he received a B.S. in Psychology in 1975 and a
M.A. from the University's Institute of Labor and Industrial Relations in 1977. In
1983 Mr. Lied received his J.D. from the University of Michigan.

He is admitted to practice in Michigan and Illinois and to the U.S. Supreme
Court, U.S. Court of Claims, the Sixth and Seventh Circuit Courts of Appeals,
the U.S. District Courts for the Northern, Central and Southern Districts of
Illinois, Northern and Southern Districts of Indiana and for the Eastern District of
Michigan. Mr. Lied has written more than two hundred articles for various publications, as well as
several chapters in publications of the Illinois Institute of Continuing Legal Education. He is a regular
lecturer on various legal topics.

Mr. Lied is a member of the State Bar of Michigan, the American Immigration Lawyers Association and
the American Bar Association, and its sections of Litigation and Labor and Employment Law. He is also
a member of the Illinois State Bar Association and its section on Labor and Employment Law, where he
is presently a council member, a former council chair and newsletter editor. Mr. Lied is a member of the
Leading Lawyers network and has been selected as an Illinois Super Lawyer for the past three years
(2007-2009).

To submit a question for our “Ask the Attorney” column, e-mail our Communications Chair at
communications@bnhrc.org.

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