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What laws protect against retaliation for reporting discrimination?

Best Employment Discrimination Lawyer Answer: All employment discrimination laws have an anti-retaliation provision, including the Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (“ADA”), the Age Discrimination in Employment Act of 1967 (“ADEA”), and the Pregnancy Discrimination Act of 1978 (“PDA”). Retaliation is a relatively easy claim to prove. (Best Law Read: Why Retaliation Is The Easiest Employment Claim). An employee must simply show that he or she opposed, reported, or participated in an investigation of discrimination, harassment, or other unlawful conduct; and that the employer took an action in response that would dissuade a reasonable employee from engaging in similar conduct. (Best Law Read: How Do I Prove Illegal Retaliation By My Job Under Title VII?; What are Examples Of Unlawful Retaliation At Work?; How Do I Prove Illegal Retaliation By My Job Under Title VII?).

What is Third-Party Retaliation?

Best Employees’ Rights Attorney Answer:

Third party retaliation is an attempt by an employer to punish or retaliate against an employee who is involved in a protected activity (such as testifying, assisting, or participating in an investigation, proceeding, or hearing related to discrimination) by punishing a related, but innocent third party. (Best Law Read: Frequently Asked Questions About Retaliation).

Employers know that any overt adverse action against an employee engaged in the above protected activities would be an obvious violation of anti-retaliation laws. A sneaky employer will instead punish or wrongfully fire a different employee who is associated with the protected employee, so the employer can try to argue that it has not retaliated against the employee engaged in protected activity – the shell game. This tactic is recognized by the courts as Third-Party Retaliation.

What is an example of third-party retaliation?

Best Wrongful Termination Lawyer Answer: Let’s look at the case Lesiv v. Illinois Cent. R.R. Co., 39 F.4th 903 (7th Cir. 2022) as an example. Lesiv and his brother Lyubomir both worked for Illinois Central. In 2016, Lyubomir filed a charge of discrimination against Illinois Central, followed by a lawsuit in 2017. In 2018, Lesiv testified as a witness in his brother’s lawsuit against Illinois Central. Three months after his testimony in the lawsuit, Lesiv was involved in a heated argument with his supervisor. Lesiv’s supervisor then gave Lesiv an extremely dangerous assignment that could have resulted in Lesiv’s death. Lesiv refused the assignment and was immediately suspended without pay and then fired for insubordination. (Best Law Read: Can My Boss Give Me Dangerous Assignments For Reporting Discrimination?)

Lesiv brought his own lawsuit against Illinois Central for retaliation as well as a third-party retaliation claim. Lesiv’s lawsuit claimed Illinois Central fired him for testifying as a witness in his brother’s lawsuit. Lesiv also claimed that his firing was intended to punish or retaliate against Lyubomir for filing the 2016 lawsuit. Lesiv argued that Illinois Central’s retaliation against him would prevent other employees from filing charges of discrimination or lawsuits against Illinois Central if they believed that a close friend or family member would be punished.

Can I bring both a direct retaliation claim and a third-party retaliation claim at the same time?

Best Employment Law Attorney Answer: Yes. Employees can bring claims that their employer retaliated against them because of both their own protected conduct, such as reporting or opposing discrimination, and because of the protected conduct of someone close to them. The employee can then prove that the retaliation was either because of both employees’ protected conduct, or alternatively, in retaliation for just one employee’s protected conduct. Unfortunately, in Lesiv, the district court got this wrong, but the United States Court of Appeals for the Seventh Circuit corrected the mistake:

The court did not cite any support for treating individual and third-party claims as mutually exclusive. Neither does Illinois Central in repeating this position on appeal. We find no support for this position and decline to adopt it. We instead view the two claims as distinct but not mutually exclusive theories of retaliation. Cf. Fogleman v. Mercy Hospital, Inc., 283 F.3d 561 (3d Cir. 2002) (addressing different theories of individual and third-party retaliation under Americans with Disabilities Act, among others, as distinct theories of retaliation); see also George v. Republic Airways Inc., No. 1:20-cv-01702-SEB-DLP, 2021 WL 1022428, at *3–6 (S.D. Ind. Mar. 17, 2021) (considering plaintiff’s individual and third-party claims under Title VII as different theories of retaliation). There is no legal barrier to Lesiv bringing both individual and third-party retaliation claims.

Can anyone bring a third-party retaliation claim?

Best Wrongful Termination Lawyer Answer: No. Under precedent established by the United States Supreme Court in Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 178, 131 S. Ct. 863, 870, 178 L. Ed. 2d 694 (2011), a third-party retaliation claim is subject to a “zone of interests” test. Under this zone of interest test, the employee would have to show sufficient closeness to the person who engaged in the protected activity and that such person would be able to assert a viable claim. In Thompson, the United States Supreme Court held:

We have held that this language establishes a regime under which a plaintiff may not sue unless he “falls within the ‘zone of interests’ sought to be protected by the statutory provision whose violation forms the legal basis for his complaint.” Lujan v. National Wildlife Federation, 497 U.S. 871, 883, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). We have described the “zone of interests” test as denying a right of review “if the plaintiff’s interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.” Clarke v. Securities Industry Assn., 479 U.S. 388, 399–400, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987).

Id. at 177–78. In Thompson, the Supreme Court applied the test to allow a claim where the employer allegedly retaliated against the fiancée of the employee who engaged in protected conduct to oppose discrimination:

Applying that test here, we conclude that Thompson falls within the zone of interests protected by Title VII. Thompson was an employee of NAS, and the purpose of Title VII is to protect employees from their employers’ unlawful actions. Moreover, accepting the facts as alleged, Thompson is not an accidental victim of the retaliation—collateral damage, so to speak, of the employer’s unlawful act. To the contrary, injuring him was the employer’s intended means of harming Regalado. Hurting him was the unlawful act by which the employer punished her. In those circumstances, we think Thompson well within the zone of interests sought to be protected by Title VII. He is a person aggrieved with standing to sue.

Do I have a claim for third party retaliation?

Best Employment Lawyer Answer: Unfortunately, you will not know if you have a claim by reading our blog, or for that matter, anything online. The facts of your specific case should be looked at by a qualified employment law attorney. Luckily, you can call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?). You can also submit a confidential submission on this website. Our employment law lawyers in Cleveland, Columbus, Detroit, Toledo, Cincinnati and Raleigh focus only on representing employees like you. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.

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