THOMPSON v. NORTH AMERICAN STAINLESS

OPINION OF THE COURT
THOMPSON V. NORTH AMERICAN STAINLESS, LP
562 U. S. ____ (2011)

SUPREME COURT OF THE UNITED STATES
NO. 09-291

ERIC L. THOMPSON, PETITIONER v. NORTH AMERICAN STAINLESS, LP

on writ of certiorari to the united states court of appeals for the sixth circuit

[January 24, 2011]

   Justice Scalia delivered the opinion of the Court.

   Until 2003, both petitioner Eric Thompson and his fiancée, Miriam Regalado, were employees of respondent North American Stainless (NAS). In February 2003, the Equal Employment Opportunity Commission (EEOC) notified NAS that Regalado had filed a charge alleging sex discrimination. Three weeks later, NAS fired Thompson.

   Thompson then filed a charge with the EEOC. After conciliation efforts proved unsuccessful, he sued NAS in the United States District Court for the Eastern District of Kentucky under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, 42 U. S. C. §2000e et seq., claiming that NAS had fired him in order to retaliate against Regalado for filing her charge with the EEOC. The District Court granted summary judgment to NAS, concluding that Title VII “does not permit third party retaliation claims.” 435 F. Supp. 2d 633, 639 (ED Ky. 2006). After a panel of the Sixth Circuit reversed the District Court, the Sixth Circuit granted rehearing en banc and affirmed by a 10-to-6 vote. 567 F. 3d 804 (2009). The court reasoned that because Thompson did not “engag[e] in any statutorily protected activity, either on his own behalf or on behalf of Miriam Regalado,” he “is not included in the class of persons for whom Congress created a retaliation cause of action.” Id., at 807–808.

   We granted certiorari. 561 U. S. ___ (2010).

I

   Title VII provides that “[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees … because he has made a charge” under Title VII. 42 U. S. C. §2000e–3(a). The statute permits “a person claiming to be aggrieved” to file a charge with the EEOC alleging that the employer committed an unlawful employment practice, and, if the EEOC declines to sue the employer, it permits a civil action to “be brought … by the person claiming to be aggrieved … by the alleged unlawful employment practice.” §2000e–5(b), (f)(1).

   It is undisputed that Regalado’s filing of a charge with the EEOC was protected conduct under Title VII. In the procedural posture of this case, we are also required to assume that NAS fired Thompson in order to retaliate against Regalado for filing a charge of discrimination. This case therefore presents two questions: First, did NAS’s firing of Thompson constitute unlawful retaliation? And second, if it did, does Title VII grant Thompson a cause of action?

II

   With regard to the first question, we have little difficulty concluding that if the facts alleged by Thompson are true, then NAS’s firing of Thompson violated Title VII. In Burlington N. & S. F. R. Co. v. White, 548 U. S. 53 (2006), we held that Title VII’s antiretaliation provision must be construed to cover a broad range of employer conduct. We reached that conclusion by contrasting the text of Title VII’s antiretaliation provision with its substantive antidiscrimination provision. Title VII prohibits discrimination on the basis of race, color, religion, sex, and national origin “ ‘with respect to … compensation, terms, conditions, or privileges of employment,’ ” and discriminatory practices that would “ ‘deprive any individual of employment opportunities or otherwise adversely affect his status as an employee.’ ” Id., at 62 (quoting 42 U. S. C. §2000e–2(a) (emphasis deleted)). In contrast, Title VII’s antiretaliation provision prohibits an employer from “ ‘discriminat[ing] against any of his employees’ ” for engaging in protected conduct, without specifying the employer acts that are prohibited. 548 U. S., at 62 (quoting §2000e–3(a) (emphasis deleted)). Based on this textual distinction and our understanding of the antiretaliation provision’s purpose, we held that “the antiretaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment.” Id., at 64. Rather, Title VII’s antiretaliation provision prohibits any employer action that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Id., at 68 (internal quotation marks omitted).

   We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired. Indeed, NAS does not dispute that Thompson’s firing meets the standard set forth in Burlington. Tr. of Oral Arg. 30. NAS raises the concern, however, that prohibiting reprisals against third parties will lead to difficult line-drawing problems concerning the types of relationships entitled to protection. Perhaps retaliating against an employee by firing his fiancée would dissuade the employee from engaging in protected activity, but what about firing an employee’s girlfriend, close friend, or trusted co-worker? Applying the Burlington standard to third-party reprisals, NAS argues, will place the employer at risk any time it fires any employee who happens to have a connection to a different employee who filed a charge with the EEOC.

   Although we acknowledge the force of this point, we do not think it justifies a categorical rule that third-party reprisals do not violate Title VII. As explained above, we adopted a broad standard in Burlington because Title VII’s antiretaliation provision is worded broadly. We think there is no textual basis for making an exception to it for third-party reprisals, and a preference for clear rules cannot justify departing from statutory text.

   We must also decline to identify a fixed class of relationships for which third-party reprisals are unlawful. We expect that firing a close family member will almost always meet the Burlington standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize. As we explained in Burlington, 548 U. S., at 69, “the significance of any given act of retaliation will often depend upon the particular circumstances.” Given the broad statutory text and the variety of workplace contexts in which retaliation may occur, Title VII’s antiretaliation provision is simply not reducible to a comprehensive set of clear rules. We emphasize, however, that “the provision’s standard for judging harm must be objective,” so as to “avoi[d] the uncertainties and unfair discrepancies that can plague a judicial effort to determine a plaintiff’s unusual subjective feelings.” Id., at 68–69.

III

   The more difficult question in this case is whether Thompson may sue NAS for its alleged violation of Title VII. The statute provides that “a civil action may be brought … by the person claiming to be aggrieved.” 42 U. S. C. §2000e–5(f)(1). The Sixth Circuit concluded that this provision was merely a reiteration of the requirement that the plaintiff have Article III standing. 567 F. 3d, at 808, n. 1. We do not understand how that can be. The provision unquestionably permits a person “claiming to be aggrieved” to bring “a civil action.” It is arguable that the aggrievement referred to is nothing more than the minimal Article III standing, which consists of injury in fact caused by the defendant and remediable by the court. See Lujan v. Defenders of Wildlife, 504 U. S. 555, 560–561 (1992). But Thompson’s claim undoubtedly meets those requirements, so if that is indeed all that aggrievement consists of, he may sue.

   We have suggested in dictum that the Title VII aggrievement requirement conferred a right to sue on all who satisfied Article III standing. Trafficante v. Metropolitan Life Ins. Co., 409 U. S. 205 (1972), involved the “person aggrieved” provision of Title VIII (the Fair Housing Act) rather than Title VII. In deciding the case, however, we relied upon, and cited with approval, a Third Circuit opinion involving Title VII, which, we said, “concluded that the words used showed ‘a congressional intention to define standing as broadly as is permitted by Article III of the Constitution.’ ” Id., at 209 (quoting Hackett v. McGuire Bros., Inc., 445 F. 2d 442, 446 (1971)). We think that dictum regarding Title VII was too expansive. Indeed, the Trafficante opinion did not adhere to it in expressing its Title VIII holding that residents of an apartment complex could sue the owner for his racial discrimination against prospective tenants. The opinion said that the “person aggrieved” of Title VIII was coextensive with Article III “insofar as tenants of the same housing unit that is charged with discrimination are concerned.” 409 U. S., at 209 (emphasis added). Later opinions, we must acknowledge, reiterate that the term “aggrieved” in Title VIII reaches as far as Article III permits, see Bennett v. Spear, 520 U. S. 154, 165–166 (1997); Gladstone, Realtors v. Village of Bellwood, 441 U. S. 91, 109 (1979), though the holdings of those cases are compatible with the “zone of interests” limitation that we discuss below. In any event, it is Title VII rather than Title VIII that is before us here, and as to that we are surely not bound by the Trafficante dictum.

   We now find that this dictum was ill-considered, and we decline to follow it. If any person injured in the Article III sense by a Title VII violation could sue, absurd consequences would follow. For example, a shareholder would be able to sue a company for firing a valuable employee for racially discriminatory reasons, so long as he could show that the value of his stock decreased as a consequence. At oral argument Thompson acknowledged that such a suit would not lie, Tr. of Oral Arg. 5–6. We agree, and therefore conclude that the term “aggrieved” must be construed more narrowly than the outer boundaries of Article III.

   At the other extreme from the position that “person aggrieved” means anyone with Article III standing, NAS argues that it is a term of art that refers only to the employee who engaged in the protected activity. We know of no other context in which the words carry this artificially narrow meaning, and if that is what Congress intended it would more naturally have said “person claiming to have been discriminated against” rather than “person claiming to be aggrieved.” We see no basis in text or prior practice for limiting the latter phrase to the person who was the subject of unlawful retaliation. Moreover, such a reading contradicts the very holding of Trafficante, which was that residents of an apartment complex were “person[s] aggrieved” by discrimination against prospective tenants. We see no reason why the same phrase in Title VII should be given a narrower meaning.

   In our view there is a common usage of the term “person aggrieved” that avoids the extremity of equating it with Article III and yet is fully consistent with our application of the term in Trafficante. The Administrative Procedure Act, 5 U. S. C. §551 et seq., authorizes suit to challenge a federal agency by any “person … adversely affected or aggrieved … within the meaning of a relevant statute.” §702. 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 (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 (1987). We hold that the term “aggrieved” in Title VII incorporates this test, enabling suit by any plaintiff with an interest “arguably [sought] to be protected by the statutes,” National Credit Union Admin. v. First Nat. Bank & Trust Co., 522 U. S. 479, 495 (1998) (internal quotation marks omitted), while excluding plaintiffs who might technically be injured in an Article III sense but whose interests are unrelated to the statutory prohibitions in Title VII.

   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.

*  *  *

   The judgment of the Sixth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

   Justice Kagan took no part in the consideration or decision of this case.

562 U. S. ____ (2011)
THOMPSON V. NORTH AMERICAN STAINLESS, LP
562 U. S. ____ (2011)
SUPREME COURT OF THE UNITED STATES
NO. 09-291

ERIC L. THOMPSON, PETITIONER v. NORTH AMERICAN STAINLESS, LP

on writ of certiorari to the united states court of appeals for the sixth circuit

[January 24, 2011]

   Justice Ginsburg, with whom Justice Breyer joins, concurring.

   I join the Court’s opinion, and add a fortifying observation: Today’s decision accords with the longstanding views of the Equal Employment Opportunity Commission (EEOC), the federal agency that administers Title VII. In its Compliance Manual, the EEOC counsels that Title VII “prohibit[s] retaliation against someone so closely related to or associated with the person exercising his or her statutory rights that it would discourage or prevent the person from pursuing those rights. ” Brief for United States as Amicus Curiae 12–13 (quoting EEOC Compliance Manual §8–II(C)(3) (1998)). Such retaliation “can be challenged,” the Manual affirms, “by both the individual who engaged in protected activity and the relative, where both are employees.” Id., at 25–26 (quoting Compliance Manual §8–II(B)(3)(c)). The EEOC’s statements in the Manual merit deference under Skidmore v. Swift & Co., 323 U. S. 134 (1944). See Federal Express Corp. v. Holowecki, 552 U. S. 389, 399–400 (2008). The EEOC’s interpretation of Title VII, I further note, is consistent with interpretations of analogous statutes by other federal agencies. See, e.g., NLRB v. Advertisers Mfg. Co., 823 F. 2d 1086, 1088–1089 (CA7 1987) (adopting NLRB’s position that retaliation against a relative violates the National Labor Relations Act); Tasty Baking Co. v. NLRB, 254 F. 3d 114, 127–128 (CADC 2001) (same), cited in Brief for United States as Amicus Curiae 11.

Print this transcript Transcript: 

ORAL ARGUMENT OF ERIC SCHNAPPER ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We will hear argument next in Case 09-291, Thompson v. North American Stainless.

Mr. Schnapper.

Mr. Schnapper: Mr. Chief Justice, and may it please the Court:

704(a), Title VII, prohibits the use of third party reprisals as a method of retaliating against a person who complained to the EEOC or otherwise opposed discrimination.

The text of Section 704(a) doesn't limit the types of retaliation which are forbidden.

The elements of the statute are unrelated to that.

The first requirement is that the plaintiff show that discrimination occurred with regards to the individual who engaged in a protected activity.

In a case like that, like this, that's shown by -- would be shown by evidence that they singled out Ms. Regalado and Ms. Regalado's fiancee.

They didn't go fire anybody else's fiancee.

That was the basis on which this particular action was taken.

Secondly, the plaintiff must show that the conduct was discrimination against the person who engaged in protected activity.

That language is easily applicable to a situation where you single out, say, a family member or a fiancee.

The purpose of that, the complaint can fairly be read to allege, was to punish the person who had engaged in protected activity.

There are a number of Federal statutes that use the word "against" in precisely this way.

They say that actions cannot be taken to -- say, against a family member of a sitting judge or other Federal official where the purpose is to act against the official.

Justice Antonin Scalia: Is Ms. Regalado still engaged to this fellow?

Justice Ruth Bader Ginsburg: They're married?

Mr. Schnapper: I'm sorry.

Is she still engaged?

Justice Antonin Scalia: Yes.

Mr. Schnapper: They're married.

Justice Antonin Scalia: Oh, they're married.

Mr. Schnapper: And they have a lovely 2-year-old daughter.

Justice Antonin Scalia: Oh, good.

Well, why didn't she bring this suit?

Mr. Schnapper: I think, Your Honor, that this Court's Article III jurisprudence would have precluded her from getting any remedy.

The -- certainly most of the remedies that are needed here, she wouldn't have had Article III standing to win an award of back pay to her now husband.

She couldn't have gotten awarded damages to him.

I think--

Justice Anthony Kennedy: Could she have gotten reinstatement on the grounds that his continuing inability to be employed by the company is an ongoing hurt to her?

Mr. Schnapper: --Perhaps.

It would depend on the circumstances.

In this particular case, almost certainly not, because of just the course of subsequent events.

But she subsequently left the company.

At this point, they live nowhere near that.

It wouldn't work.

Justice Anthony Kennedy: Suppose an employer dismisses an employee on an impermissible ground, impermissible under Title VII, and is a very valuable employee.

Can the shareholders sue on the ground that the shareholder is now injured because the company is worth less, having lost this employee, under Title VII?

Mr. Schnapper: I don't believe so, Your Honor.

I don't believe so.

But the situation here is different than that.

Justice Ruth Bader Ginsburg: Because you start with somebody who is unlike the shareholders, there is no Title VII violation as to them.

Regalado is complaining of sex discrimination, and then she said, because I made a complaint, they retaliated against me.

The shareholders are not in that position, because there was no initial charge.

Justice Anthony Kennedy: No, it's the same hypothetical.

Regalado, all the same facts, except she is very valuable to the company.

The company is now worth less; shareholder sues.

Mr. Schnapper: I think the thrust of your question was -- is: Are the shareholders like Thompson?

And I think that Thompson's situation is quite different.

He was the very target of the illegal act.

The illegality occurs only by means of dismissing him.

Justice Samuel Alito: The question is whether he's aggrieved within the meaning of Title VII.

Mr. Schnapper: That is the other question.

Justice Samuel Alito: And your argument is that if there is injury, in fact, sufficient to satisfy Article III of the Constitution, then the person is aggrieved.

Mr. Schnapper: The Court's decision in Trafficante goes that far, and in practice it has not proved a problem under Title VIII.

That's generally been its understanding here.

Justice Samuel Alito: Is it your argument that we have -- that we should go that far?

Mr. Schnapper: We do not--

Justice Samuel Alito: We don't need to go that far?

Mr. Schnapper: --You don't need to go that far.

Justice Samuel Alito: Where do we draw the line?

Mr. Schnapper: Well, I think the Government -- I think as far as you need to go, which is not the same as saying, that's as far as the law goes, is the standard articulated by the Government, as in McCready, where the action against Thompson was the very method by which the law was violated; that that would satisfy the requirement of person aggrieved.

Justice Samuel Alito: Where does that come from?

Where does that test come from?

Mr. Schnapper: Your Honor, I don't -- I think that's as far as you need to go in this case.

I think the standard of aggrieved is broader than that, but the -- as this has played out in the lower courts since Trafficante, there's a wide range of different kinds of circumstances under which the Trafficante rule has been invoked in Title VII cases.

We're not asking you to address all of those.

Justice Samuel Alito: I understand the argument.

I don't really -- it's not too helpful, at least to me, to say, as far as we need to go in order to reverse.

That's really not how the statute ought to be interpreted, I would say.

What does it mean?

Now, I understand the argument that "aggrieved" means all the way to what's -- all that's necessary is what is necessary to satisfy the Constitution.

And I understand that argument.

It's a very broad argument with a lot of implications.

But if that's not correct, then what is the correct test and where does it come from?

Mr. Schnapper: Well, Your Honor, I think that there are two other limitations that would be applicable here, as indeed they would have be under Title VIII.

First one is proximate cause, which will cut off a lot of injuries down the road.

And Title VII is adopted against a background of proximate cause rules, and there, I don't think -- we don't contend that in using the word "person aggrieved" they meant -- Congress meant to set those aside.

Secondly, the -- I think a fair reading of the word "aggrieved" is that it is -- "aggrieved" is both, in ordinary English, frankly, broader and narrower than "injured".

It is broader -- and that's, of course, not your concern -- in the sense that it covers people who haven't been injured yet but might be injured in the future.

But it also has a second element, which is that the action at issue involves some sort of a wrong.

If someone deliberately knocks me down, I'm injured, I'm probably aggrieved, but not if I'm carrying a football in the middle of a football game.

That's a legitimate thing to do.

So I think that there has to be a wrong, and the wrong has to be the basis of the plaintiff's objection.

You could have a situation where the plaintiff really didn't care one way or another why that harm had happened.

It was -- but in this case, that's precisely why Thompson complains.

He's not suggesting that he would be wronged if he were ever fired at all.

He is aggrieved because he was fired for a reason that was an improper reason, and we think those are -- those are--

Justice Ruth Bader Ginsburg: What -- what do you do with the argument that says there's a middle step?

You can -- you have the sex discrimination complaint, and then you have Thompson, who is aggrieved in the sense that he was hurt, he was injured.

But they say there's no cause of action, there's no statutory cause of action, for Thompson.

Mr. Schnapper: --Well, the -- we think that's just clearly wrong.

The statute provides a cause of action.

If I might go back to how that came up in the court of appeals, the court of appeals appears to have assumed that third-party reprisals are unlawful.

That's not entirely clear.

Then in footnote 1, the court of appeals said that Thompson was aggrieved.

Notwithstanding that, they then went on to say that -- there's no cause of action in the statute, they said in section 704(a).

That really doesn't make any sense.

The -- the statute provides an express cause of action that says that individuals -- certain individuals, if the requirements are met, can bring lawsuits.

So the question is, as -- as Justice Alito put it and -- and was put before, which is whether the plaintiff is aggrieved.

But if he's aggrieved, he's clearly got a cause of action--

Justice Samuel Alito: Suppose Thompson were not Regalado's fiancee at the time.

Suppose they were just -- they were just good friends.

Would -- and everything else happened, and he alleged that he was fired in retaliation for her engaging in protected conduct.

The way the company wanted to get at her was by firing her friend.

Would that be enough?

Mr. Schnapper: --Well, the -- the plaintiff would have to prove two things.

First of all, the plaintiff would have to prove that that was indeed the company's motive for picking him to fire him.

Secondly, under this Court's decision in Burlington Northern, the plaintiff would have to show that this is a retaliatory action sufficiently serious that it was -- it would likely persuade a reasonable employee in Regalado's position to dissuade her complaint.

And -- and that's why we've agreed with the Respondents' contention that -- that they're entitled to an evidentiary determination about whether that standard was met here.

So that's an important limiting principle, and it has--

Justice Samuel Alito: How does that translate?

How does that Burlington Northern standard translate into this situation in which there is some sort of relationship between the -- the person who engaged in the protected conduct and the person who suffers the adverse employment action?

That's what's troubling to me about -- about the theory.

Where it's a fiancee, it's -- that's a relatively strong case, but I can imagine a whole spectrum of cases in which there is a lesser relationship between those two persons, and if -- if -- if -- unless there's a clear line there someplace, this theory is rather troubling.

Mr. Schnapper: --Well, I think--

Justice Samuel Alito: Can you help -- can you help provide where the clear line is?

Does it go -- does it include simply a good friend?

Does it include somebody who just has lunch in the cafeteria every day with the person who engaged in the protected conduct?

Somebody who once dated the person who engaged in the protected conduct?

Are these all questions that have to go to a jury?

Mr. Schnapper: --They wouldn't all have to go to a jury.

I mean, the -- the problem, as you cast it, is that the standard in Burlington Northern, no offense, isn't a bright line.

It is the standard, which it is.

And the same question could arise about other methods of retaliation.

What about -- what about cutting someone out of five meetings or ten meetings?

That same problem exists under Burlington Northern no matter what.

Justice Stephen G. Breyer: Well, why can't -- why can't they get -- the first question, to go back, is a confusion in my mind: Why couldn't she bring this suit?

And she says, I was discriminated against because they did A, B, C, D to him, and the remedy is, cure the way in which I was discriminated against.

And to cure that way, you would have to make the man whole in respect to those elements that we're discriminating against.

Do you give him back pay?

Do you restore him?

You do everything you would normally have to do because otherwise, she is suffering the kind of injury, though it was to him, that amounts to discrimination for opposing a practice.

What's wrong with that theory?

Mr. Schnapper: I think that that kind of remedy would pose very serious problems under Article III.

Justice Stephen G. Breyer: Why?

Why?

Mr. Schnapper: Because money isn't going to her.

Justice Stephen G. Breyer: So what?

She's hurt.

Suppose it was a child that they -- what they -- or suppose they robbed -- they robbed the -- the judge's wife in order to get him to do something?

And -- and that's a crime, and suppose there was a civil statute.

The judge says: The way you cure what you did to get me to do something is you make me whole.

And in that instance, it requires making her whole.

What's the Article III problem?

Well, anyway -- this is crucial, but I'm -- I'm -- I'm just saying--

Mr. Schnapper: Well, I think it -- I think it is of some -- some importance here.

I mean, it -- it -- the -- ordinarily, Article III would bar me from suing for an award of money to be paid to somebody else.

Justice Stephen G. Breyer: --But that's because the award of money to be paid for somebody else, their absence of money, didn't hurt you, but where there -- for example, if you're a trustee, you certainly can sue to get the beneficiary put back.

There are dozens of cases where you can sue to get somebody else paid back money, and -- and why isn't this one of them?

But anyway, I'm not -- I don't want to pursue it beyond a quick answer, because there are other things in this case.

Mr. Schnapper: Well, as -- as I say, I think -- I think Article III would be -- would be a major obstacle there.

Chief Justice John G. Roberts: I understood your brief, and certainly the Government's brief, to take a very expansive view of what type of retaliation would give rise to a cause of action by the -- the directly harmed employee.

Now you seem to be suggesting that that employee would not have Article III standing to bring an action.

Mr. Schnapper: I think we've got a situation here in which this violates the rights of Regalado, but Regalado's ability to herself bring a lawsuit and get a remedy is limited, and that -- that--

Justice Ruth Bader Ginsburg: You're not taking the position that she could not have sued in retaliation?

It would be awkward because he is -- it's his injury that requires compensation, but are you saying that she could not have brought a retaliation suit?

Mr. Schnapper: --It's possible she could bring a suit.

The question would be whether she had Article III standing to seek the remedy that she was then seeking, which would often be a problem.

Justice Ruth Bader Ginsburg: Let me -- because your time is running -- the Americans with Disabilities Act has an explicit provision that allows suits by adversely affected close relatives.

You are essentially asking us to read that provision, which is stated expressly in the ADA--

Mr. Schnapper: If I might respond to that briefly, you're referring to section 12112(b)(4) of the ADA.

That is a provision directed at a very different problem, which is not associations between employees.

It's -- it's directed at employers who might refuse to hire a worker because, for example, he had or she had a child with a disability.

The EEOC's commentaries on the regs about this explain it.

It is -- it is not concerned with employee relations.

It is concerned with a discrimination against a worker -- prospective worker, typically -- because they have a family member who has a disability, and the employer has preconceptions about whether they will be good workers based on that.

Chief Justice John G. Roberts: Thank you--

Justice Sonia Sotomayor: But the Fair Housing Act has a definition of injury that would include Mr. Thompson, and that's not in this act, that express language.

Mr. Schnapper: That's correct, Your Honor.

That -- that statute was adopted somewhat later.

There are large numbers of statutes that have a general language like "person aggrieved".

But I think that in the case, of the Housing Act, that language fairly describes the ordinary English meaning of "aggrieved".

Sometimes Congress does that.

There are other definitions in the Fair Housing Act like that -- like the definition of "dwelling".

It doesn't mean U.S. Code.

Congress in that instance decided to spell out what everyone, I think, understood what the word would have meant.

Chief Justice John G. Roberts: --Thank you, Counsel.

Ms. Kruger.

ORAL ARGUMENT OF LEONDRA R. KRUGER, ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE SUPPORTING THE PETITIONER

Ms Kruger: Mr. Chief Justice, and may it please the Court:

When an employer fires an employee as a means of retaliating against a relative or close associate who has filed an EEOC charge, the employee who has been fired is entitled under Title VII to go to court and seek appropriate remedies, even if he hasn't himself engaged in protected activity.

Chief Justice John G. Roberts: Can I ask you this?

Suppose -- go ahead.

Justice Samuel Alito: Put yourself in the -- in the shoes of an employer, and you -- you think -- you want to take an adverse employment action against employee A.

You think you have good grounds for doing that, but you want -- before you do it, you want to know whether you're potentially opening yourself up to a retaliation claim.

Now, what is the employer supposed to do then?

They say, well, let's -- we need to survey everybody who is engaged in protected conduct, and now we need to see whether this person who we're thinking of taking the adverse employment action against has a, quote, unquote, "close relationship" with any of those people.

So what do you do?

Do you call everybody in from the company and you say, now, is -- you know, was -- are these people dating?

Did they once date?

Are they good friends?

What are you supposed to do?

Ms Kruger: Justice Alito, we are not arguing for a test that would create a kind of protection for a so-called right of association under Title VII.

It's not the case that so long as somebody is associated with somebody who has complained about discrimination they would be automatically protected under the test that we're advocating.

The reason the relationship is important in this case is because it tends to render plausible the argument that there's a causal connection between the adverse action visited on Thompson in this case--

Justice Samuel Alito: I understand that.

I do understand that, but I wish you -- I would like you to answer my question.

Does the employer have to keep a -- a journal on the intimate or casual relationships between all of its employees, so that it knows what it's -- it's opening itself up to when it wants to take an action against someone?

Ms Kruger: --No, I think it's actually quite the contrary.

I think if the employer doesn't know about the relationship, any allegation like the allegation we have in this case simply isn't going to be plausible.

It isn't going to be a plausible contention that there is a relationship between one employee's protected activity and an adverse action visited on the plaintiff.

Chief Justice John G. Roberts: Well, but you say, but it won't be because of the degree of connection between the -- the retaliated-against employee and the means of retaliating.

I understood your brief.

I'm just looking at page 6.

The limitation you propose is someone -- someone close to him.

The anti-retaliation prohibition prohibits an employer from firing an employee because someone close to him filed an EEOC complaint.

And I guess I have the same concern that we have been discussing for a little while.

How are we supposed to tell, or how is an employer supposed to tell, whether somebody is close enough or not?

Ms Kruger: Well, if there's -- I don't think there's any reason for the Court to try to fashion a hard and fast rule that identifies some relationships that are close enough and others that aren't.

The question in every case is the question that's posed by this Court's standard in Burlington Northern: Was this an action that a reasonable employee would have considered materially adverse?

Would it have been deterred--

Chief Justice John G. Roberts: But Burlington Northern, of course, is quite different, because you're just -- you're dealing with the obvious plaintiff in that case.

You -- your -- your concern is confined to a particular person.

In this hypothetical, it's an unlimited universe that you don't have any reason to know where it ends.

Ms Kruger: --Well, it's certainly going to be important whenever a plaintiff brings a suit like this both to establish that the employer knew of the relationship and the relationship was one that is of sufficient closeness that a reasonable employee might be deterred from making or--

Justice Sonia Sotomayor: Why does that matter under your theory?

Let's assume the different -- slightly different, that they're just coworkers, but a coworker who has expressed sympathy for the discriminated person, has spoken about them in a favorable light, or has tried to defend them.

Would that person be protected from being fired--

Ms Kruger: --Well--

Justice Sonia Sotomayor: --if the intent was to retaliate against the person complaining of discrimination by getting rid of their friend who's supporting them?

Ms Kruger: --In that scenario, I think that that person would have a cause of action, but for a different reason.

Under this Court's decision in Crawford, that person would probably be considered to be a person who had opposed the discrimination, and for that reason would themselves have engaged in a protected activity.

Justice Sonia Sotomayor: So an opposer is anyone who -- who assists?

Ms Kruger: That's our understanding of what this Court held in -- in the Crawford case.

Justice Sonia Sotomayor: Let's assume they did it in private, but the employer knew it.

They overheard a conversation between the close friend and the employee saying, I really am in support of you; I know you've been treated unfairly.

I like you; I like you working here.

Would that person be close enough?

Ms Kruger: I think that -- again, I think it's a question that sort of turns on whether a jury would find that a reasonable employee in the position of the person who had engaged in protected activity would be deterred from making or supporting a charge of discrimination if they knew the consequence was that their best friend would be fired.

Justice Antonin Scalia: I don't want to have to go before a jury as an employer all the time.

I want -- I want a safe harbor.

I don't even want to mess with people that might -- that might be buying a lawsuit, and you're telling me, well, you know, I can't help you.

You have to go before a jury, say, if this person is close enough.

Why can't we say members of family and fiancees?

Would -- would -- would that be a nice rule?

Ms Kruger: Well, I think that it would be an essentially arbitrary rule.

Justice Antonin Scalia: I know.

Ms Kruger: At end of the day, the question is just the question that the Court assigns under Burlington Northern.

It's a question that turns on the specific facts and context of the -- a specific case.

Justice Antonin Scalia: Yes, but as--

Ms Kruger: I think, in defense of the Court--

Justice Antonin Scalia: --As the Chief said, it -- it spreads much further than Burlington Northern.

Burlington Northern, at least you know who it is you have to be careful with: The person who's -- you know, who has made a complaint.

But -- but with what you're proposing -- my goodness, I don't know who it is I have to be careful with.

Ms Kruger: --Well, an employer always is going to have to be careful to some degree not to visit harm on an employee for retaliatory reasons.

Justice Samuel Alito: But you're -- you're a reasonable person.

What would you say is the degree of closeness that is required?

Ms Kruger: I don't think that there's any way to fashion a hard and fast rule.

The fact of the matter is that most of the cases that have arisen that have raised third-party retaliation arguments, which are indeed cognizable under a number of -- of employment statutes, and I don't think Respondent disputes that they are rightly so -- have largely concerned relationships like the relationship between parent and child, between husband and wife.

In one case under the Occupational Safety and Health Act, it's involved a relationship between very good friends in the workplace, whereas there is a D.C. Court of Appeals decision that holds that a merely professional relationship that doesn't exhibit that degree of personal affection isn't sufficiently close.

Justice Samuel Alito: Very good friends is enough?

Ms Kruger: I think that a reasonable employee who knows that the consequence of making or supporting a charge of discrimination is going to be that their best friend at work is going to be fired may be deterred from engaging in protected activity.

Justice Anthony Kennedy: In -- in your view, could Regalado have brought this suit, or brought a suit?

Ms Kruger: Yes, Justice Kennedy, we do think that Regalado could have brought a suit in her own right, because she, too, is a person aggrieved within the meaning of the statute.

Justice Anthony Kennedy: Well, if that is so, why doesn't that vindicate the purposes of the act?

Ms Kruger: Well, for two reasons, Justice Kennedy.

First of all, Regalado here didn't sue, just like most people in her position didn't sue, because mostly people who are charged with the enforcement of Title VII -- as the private attorney generals -- under the statutory scheme will assume that the person who lost their job--

Justice Anthony Kennedy: Well, but I -- I assume that part of the thrust of your argument is that this was designed to hurt this -- Regalado, that she was hurt, that this was injurious; then you say, oh, well, it's not important enough for her to sue.

So someone that is more remote can sue.

That's an odd rule.

Ms Kruger: --Well, I think in that situation, that she certainly -- she might sue, but she also might assume it ought to be her fiancee whose job was actually lost who ought to carry--

Chief Justice John G. Roberts: Well, can't they talk about that?

Ms Kruger: --They might--

Chief Justice John G. Roberts: I mean, it's not like you're dealing with strangers.

That's the whole point.

It's someone close to them.

I -- on the one hand you're saying, well, you only have to worry about people really close; and then your response to this line of questioning is, well, the other person might not sue.

They're going to sit and say, "Well, you sue".

"No, you sue".

Ms Kruger: --Well, the fact that they were close at the time of the retaliatory act doesn't necessarily mean that they might still be close at the time that they need to decide whether or not to press charges.

Justice Ruth Bader Ginsburg: The point you were first making, I thought, was: These are lay people; they don't have a lawyer; they would naturally think that the person who was hurt would be the one to sue.

Ms Kruger: That's exactly right, Justice Ginsburg.

I think the other--

Chief Justice John G. Roberts: Why is that a problem?

You're dealing with people who are close.

They assume the person who was hurt -- the person retaliated against would sue.

Well, why -- why don't they?

You said that person has a valid suit.

Ms Kruger: --They may not be close by the time--

Chief Justice John G. Roberts: They are lay people.

They don't know about Article III.

Ms Kruger: --Well, that is certainly one point.

But I think even if they were perfectly informed and the rule that this Court announced was one that put Regalado in the driver's seat entirely with respect to whether or not to pursue the cause of action under Title VII, there would still be a problem with respect to whether or not she could seek full relief, the relief that's necessary to make him whole.

Justice Samuel Alito: Well, if someone in Thompson's position filed a charge with the EEOC, couldn't the EEOC tell him, you're the wrong person to sue?

Ms Kruger: It conceivably could, but that is--

Justice Ruth Bader Ginsburg: But the EEOC thinks that he's the right person.

Ms Kruger: --Well, the EEOC certainly does think he's the right person.

If this Court were to say that the EEOC's wrong--

Justice Samuel Alito: If the rule is that -- if the rule is otherwise, why couldn't they provide advice?

Ms Kruger: --The EEOC is ordinarily not in the business of advising people who filed charges with respect to charges that other people might file, for confidentiality reasons, among other reasons.

Chief Justice John G. Roberts: Thank you, Ms. Kruger.

Ms. Latherow.

ORAL ARGUMENT OF LEIGH GROSS LATHEROW ON BEHALF OF THE RESPONDENT

Ms Latherow: Mr. Chief Justice, and may it please the Court:

Eric Thompson does not allege that he was discriminated against, but Title VII is a discrimination statute.

The only person who alleges that they were -- that was--

Justice Sonia Sotomayor: Do you -- if Regalado had sued and said -- assume the fact; I know that you claim it didn't happen -- they fired my fiancee to retaliate against me.

Ms Latherow: --Okay.

Justice Sonia Sotomayor: Do you agree with your adversary that she wouldn't have Article III standing to seek reinstatement or back pay for her fiancee?

Ms Latherow: I don't -- I do think she could seek reinstatement to get general equitable relief of the court.

In terms of back pay, I don't see why she couldn't recover that for him.

But in terms of his coming back to work--

Justice Sonia Sotomayor: I would like to see that case next--

Ms Latherow: --I'm sorry?

Justice Sonia Sotomayor: --and see what position you take the next time.

Are you willing to commit your company to that position today?

I won't do that to you.

Ms Latherow: Okay.

Thank you, Your Honor.

No one is seeking damages for Ms. Regalado in this case.

Eric Thompson is here to use her rights to recover for her alleged discrimination based upon her conduct.

Justice Antonin Scalia: You know, but if you concede that she could have sued, then what's the big deal?

Then we still have the same problem, that the employer doesn't know whom he has to treat with kid gloves.

What's the difference whether when the law comes down on him, it's she who brings the suit or her fiancee?

He's worried about the suit.

He still doesn't know whom he has to be careful with.

Ms Latherow: I agree that she can bring the cause of action based upon Burlington and the way that the language is written in Burlington.

I think it's very, very broad.

And so she has -- the Burlington says she has to prove injury, that retaliation without injury is not actionable.

Justice Antonin Scalia: Okay.

So that's your only point, not that it's going to be very difficult for employers to figure out who can be protected and who can't?

You abandon that issue?

Ms Latherow: No.

I think if Regalado has the right to bring a cause of action, it is going to be very difficult.

Justice Antonin Scalia: Okay.

Ms Latherow: But I think that the way that Burlington reads now, and that is whether someone would be dissuaded, if that is harm to her then she could bring the cause of action.

What's difficult about applying the Burlington standard is you could have someone who is dissuaded from filing a claim, but may not be harmed.

For example, if an employer announced a proposition that it was going to fire an employee at random whenever someone filed an EEOC charge, I might not file a charge because I wouldn't want someone, even someone who I didn't know, to be terminated, but I wouldn't be injured in that scenario.

Justice Anthony Kennedy: So you're saying an employer could adopt that policy?

Ms Latherow: I'm sorry?

Justice Anthony Kennedy: Are you saying an employer could adopt that policy?

Ms Latherow: No, I'm not, because the person who is discriminated against--

Justice Anthony Kennedy: So if an employer says, now, if anybody makes a discrimination claim, we're going to fire two other employees just to show you that we run an efficient corporation here, you say that that is proper or improper?

Ms Latherow: --It's improper, because the person who was discriminated against would have the right to sue.

Chief Justice John G. Roberts: Who is the person who is discriminated against in the hypothetical?

Ms Latherow: The person who -- the person who filed the EEOC charge.

Chief Justice John G. Roberts: Okay.

Ms Latherow: What makes this case a little cloudy--

Justice Anthony Kennedy: But the persons, the two people in the hypothetical that are fired can't sue?

Ms Latherow: --They cannot, not under the discrimination provision of Title VII, because they were not discriminated against based upon their conduct.

It wasn't anything that they did.

And that's what Burlington Northern says, that the anti-retaliation provision of Title VII seeks to prevent harm to individuals based upon what they do, based upon their conduct.

Those two hypotheticals--

Justice Antonin Scalia: Why should -- in this World War II Nazi scenario, why would the woman who caused the random firing, why would she bring a lawsuit if these people are really nothing to her?

She just has a guilt of conscience or something?

I mean, I don't see why she would bring the lawsuit.

If it was her fiancee, maybe, but this--

Ms Latherow: --She may not, but the EEOC could.

Justice Antonin Scalia: --She might not even like the people who were fired.

Ms Latherow: In which case she wouldn't have been injured, so she would have no claim.

If you think about it, if she was not discriminated against, then the other people could not bring a claim for discrimination based upon her.

What makes this case a little cloudy is that Eric Thompson is an employee as well, but he doesn't bring this case as an employee.

You could very well have Eric Thompson as a spouse who is not employed.

So, for example, if Mr. Thompson had been just -- let's make him a spouse, an even closer relationship than a fiancee, and suppose that his job -- he ran an animal shelter in Carrolton, Kentucky, and it was a benevolent organization, but his only source of revenue was a generous gift from North American Stainless at Christmastime.

And in 2003, after Regalado filed her claim with the EEOC, filed her charge, North American Stainless said, I'm not going to give money this year to the animal shelter, to Mr. Thompson, and I'm not going to do it because of Regalado, who is our employee, because she filed a charge of discrimination.

I'm not going to do anything to help her.

I'm not going to do anything to help him.

In that case, under Mr. Schnapper's standard, any person aggrieved can bring a claim.

That person, who is not even an employee, because they have some kind of injury, could bring a claim.

Chief Justice John G. Roberts: Well, but his point was that "aggrieved" includes not only injury, but wrongfulness.

It may not be very -- I don't know, nice, but there's nothing wrongful about North American Stainless deciding it's not going to fund an animal shelter because of some other reason.

Ms Latherow: But it's -- it's treating Regalado with discrimination.

It is treating her differently than it might treat another employee because she brought the cause of action.

That would be discrimination against Regalado because it's treating her differently, but under their analysis--

Justice Stephen G. Breyer: You couldn't win on that under Burlington.

I think that there are three separate issues here that have to be kept straight.

No one can win in court unless they show there was a human being -- in this case, the woman -- who suffered material -- who suffered serious harm, serious harm.

And serious harm is defined as materially adverse action which might well have dissuaded a reasonable worker from making or supporting a charge of discrimination.

So unless she suffered that kind of serious harm, nobody wins.

Then the next question is suppose in the course of that, somebody else was hurt.

And the person aggrieved provision suggests because of the history of the word "aggrieved" that more than just she can bring the lawsuit.

That's our first question.

And then our third question is, if the second question is yes, why can't the whole world do it?

At least the barber who doesn't get the haircut anymore because the person fired doesn't have any money or the landlord who can't get his rent or the -- you know, we can go on indefinitely.

Okay?

Ms Latherow: --Yes.

Justice Stephen G. Breyer: So why don't we get to the second question?

The second question is -- the word "aggrieved" has a history.

I think it comes out of -- what's the case?

I think it comes out of FCC v. Sanders Brothers, which is a 1940 case, which said that sometimes where there's a statute using the word "person aggrieved", that that means that a person can bring a lawsuit even though that person does not suffer injury of the type that the statute was meant to prevent against.

Ms Latherow: Yes, Your Honor.

Justice Stephen G. Breyer: That was picked up by the APA.

Ms Latherow: Yes, Your Honor.

Justice Stephen G. Breyer: It says "person aggrieved".

So we have a statute that says "person aggrieved".

Maybe it means it in a different sense or maybe it means it in the APA sense, Sanders Brothers sense, which means in principle, this plaintiff can sue.

You can argue against that if you want, but, I mean, that's where I'm starting from.

And then we can have the third part, which is: Is there a way of limiting this?

Ms Latherow: Yes, Your Honor.

Justice Stephen G. Breyer: You don't have to -- I'm just asking a question, quite a long question.

Justice Antonin Scalia: You don't even have to agree with his description of what Sanders Brothers and the APA say.

Justice Stephen G. Breyer: You don't, but it would be pretty hard to do that, because it's in black and white here.

Justice Antonin Scalia: Isn't there a doctrine of the scope of persons protected under a particular statute?

Ms Latherow: Absolutely, Your Honor.

Justice Antonin Scalia: Doesn't the word "person aggrieved" bring that whole lore along with it?

Ms Latherow: I believe it does, Your Honor.

Justice Ruth Bader Ginsburg: Can we go back to -- first, you agree that it is unlawful to retaliate against a person who filed a complaint under Title VII by dismissing a close relative?

It is an unlawful employment practice, is it not?

Ms Latherow: I believe it could meet the standard under Burlington, yes, Your Honor.

Chief Justice John G. Roberts: Do you want to get back to Justice Breyer's question?

I don't think you had a chance to respond to it.

Ms Latherow: Yes, Your Honor.

Thank you.

Justice Breyer, I believe your question was the scope, and what does this term "aggrieved" mean?

And in the Sanders case, the Court said that this term "aggrieved" means something broad and it is intended to bring a lot of people in.

But that case was interpreting the APA, which has specific language.

Just like in Trafficante, the Court was considering the Fair Housing Act, both of which have very different -- in the statute in question, the APA says a person suffering a legal wrong because of an agency action or adversely affected or aggrieved by agency action within a meeting of a relevant statute is entitled to judicial review, and that's much broader than what we have in this case.

So we have to be looking at whether prudential standing rules apply, and we know that Congress legislates against that prudential standing.

Justice Antonin Scalia: I'm not sure it's broader.

Why do you say it's broader?

It says

"adversely affected or aggrieved within the meaning of the relevant statute. "

and it's that language that says, well, the statute was only meant to protect this group of people, and the fact that somebody else was incidentally harmed would not be covered.

I don't know why you say that's broader.

If anything, it's narrower than what we have here.

We just say "aggrieved".

It doesn't say within the meaning of a relevant statute.

You want to us read that into it?

Ms Latherow: Yes, I -- I believe it should be read into Title VII, because that's the term "aggrieved".

If someone -- if my husband calls and says, oh, my gosh, we've been involved in a car accident, I don't say: Honey, are you aggrieved?

I say: Honey, are you injured?

That's exactly -- exactly the definition of "aggrieved" in the Fair Housing Act.

So Congress recognized, just 4 years later, after Title VII was adopted, when it enacted the Fair Housing Act.

And it defined "aggrieved", and said aggrieved means or includes any person who claims to have been injured.

That's really--

Justice Ruth Bader Ginsburg: That's not -- that's not an altogether novel question, but it has come up under some other statutes.

You are -- are suggesting that this is carrying the -- the person aggrieved to new heights, but we have both the NLRB and we have OSHA, and both of those agencies have said it, that to take adverse action against a close relative is an unfair employment practice, and they've done that for sometime, have they not?

Ms Latherow: --Yes, Your Honor.

And again, we're not saying that discriminating against an employee in taking some kind of action against someone that they loved is not an unlawful employment action.

It can be.

That's not the position that North American Stainless is taking.

The question is, is the person who was not discriminated against, the person who was injured by the action, can they bring the cause of action.

Justice Antonin Scalia: Ms.--

Ms Latherow: And Title VII--

Justice Antonin Scalia: --Go on, I'm sorry, finish.

Ms Latherow: --Oh, I'm sorry.

Burlington makes clear the interest to be protected of that with the anti-retaliation provision, and that's what we're talking about.

Justice Stephen G. Breyer: That's -- that's why this is -- see, what Sanders Brothers did is the interest to be protected against had nothing to do with protecting competitors from competition.

The Court says that.

And it says but here is a competitor trying to protect himself from competition, can he bring a suit?

Well, normally not.

But Congress used the word "person aggrieved" or "adversely affected", and therefore they can.

Now, that's the precedent that's -- that's -- that's harmful to you.

I'm not certain.

What about the third part?

I have a suggestion, and I would like your response, because I'm just playing with the thought.

That the way to limit this is to say that where a person is being used, a person B is hurt because in order to retaliate against person A, okay?

That that is a person aggrieved where person B is being -- is hurt, the injury, the injury to B, not to A is the means of hurting A.

But where it is a consequence of hurting A, that doesn't fall within the statute.

That gets rid of the bowling alley, it gets rid of the landlord, it gets rid of the shareholder, it gets rid of all the people who -- who -- who are not the person retaliated against, but they suffer injury because he was retaliated against.

It keeps the people who are being used as a means.

They can bring the lawsuit.

Ms Latherow: And I'm sorry, and your question is?

Justice Stephen G. Breyer: If, in fact, you set in motion hurting Mrs. Smith, the child, the wife, even the coworker, though that would be hard to get pass Burlington, if you do that in order to hurt A, to retaliate against A, B can bring the suit?

But if B is a person who is injured only because you retaliated A, but really wasn't the means, B can't bring the suit.

Ms Latherow: But, Your Honor, respectfully, there's no basis in the statute to adopt that rule.

Justice Stephen G. Breyer: That is the problem with my theory.

[Laughter]

Ms Latherow: I'm glad--

Justice Stephen G. Breyer: But there are -- I do -- I think that it isn't so hard to find in some of the sources that Justice Ginsburg mentioned and others instances where the only kinds of suits that have been allowed are where it was like a family member or was being used as a means, and there never have been cases where they allowed somebody who was just suffering consequent injury.

So it's quite possible I can be borne out, though I think your criticism is a pretty good one.

[Laughter]

Ms Latherow: --If we look at the kinds of cases, for example, the Trafficante case, and the other cases under the APA where Congress has used this broad language or has interpreted the term v. Spear, the environmental species act or the Blue Shield of Virginia case, which was a Sherman Act case, the injury or the act, the violation -- the violation in those cases had the potential to -- to inflict harm on a large group of people.

So that, under Trafficante there were over 8,000 people who lived in the housing complex.

Under Bennett v. Spear with the environmental species act there was more than one person who was adversely affected or potentially was adversely affected.

In Blue Cross--

Justice Antonin Scalia: I don't see where you're going, the employee has to fire three fiancees or a larger number of--

Ms Latherow: --No, my point is, is that if we're looking at trying to compare Title VII and whether or not we're going to impose some prudential limitations on the ago aggrieved language, those statutes are different than the statutes that we have--

Justice Antonin Scalia: --But, you know, I don't know what aggrieved means, I don't think anybody does.

Why shouldn't we be guided by the EEOC, which has responsibility for implementing this statute?

And they've come up with their theory of what it means, and we usually do accede to a reasonable theory proposed by the implementing agency.

Why -- why shouldn't we do that?

Ms Latherow: --Your Honor, this is not a situation like Calleleki, where the Court is trying to determine on something about a procedure within the EEOC, and that is, what does it mean for a charge, because you need some kind of special expertise.

Here the Court is the expert on interpreting.

And Thompson even disagrees with the EEOC.

The EEOC would say Regalado and Thompson could bring the claim, but Thompson disagrees with that.

So it's hard for Thompson to come and say let's do what the EEOC says when he disagrees with it himself.

Justice Ruth Bader Ginsburg: It's not a 100 percent -- he thought there might be an Article III impediment.

But in -- in your brief I think you suggested that the EEOC doesn't get a whole lot of deference, and the -- but the other agencies that I mentioned, where there is this claim that can be brought by a close relative, the NLRB gets a lot of deference, the Department of Labor when we're dealing with Occupational Safety and Health Administration or the mine safety, those agencies get a fair degree of deference, and they come to the same conclusion.

Ms Latherow: I -- I agree with that, Your Honor.

And in this -- this -- I don't know, but I believe this to be true that, for example, with the NLRB and with OSHA, they have their own administrative agencies where there would be hearings within those agencies versus with Title VII, the EEOC does not -- they're not a determiner--

Justice Ruth Bader Ginsburg: But this is a -- an interpretation of the substantive meaning of the statute.

Ms Latherow: --Yes, Your Honor.

Justice Ruth Bader Ginsburg: It doesn't have to do with the evidence in a particular hearing.

Can a person who is a close relative sue on the grounds that he was injured, deliberately so, in order to retaliate against his spouse or his fiancee?

Ms Latherow: Yes, Your Honor.

I -- I don't know the distinction between relying on those -- those agencies versus the EEOC, but I do know that in the Burlington court, this Court noted that the EEOC compliance manual -- and that's what we're talking about, is the compliance manual, we're not talking about a regulation, we're not talking something else, but a compliance manual.

So in your hypothetical I don't know if we're talking about a compliance manual from the NLRB or OSHA, but this is a compliance manual.

And in Burlington, this Court noted there were inconsistencies regarding the anti-retaliation within the compliance manual as to what an adverse action meant or what would constitute an adverse action.

Justice Antonin Scalia: What's -- what's the function of the compliance manual?

What does it do?

Does it say we'll -- we'll leave you alone if you do this?

Ms Latherow: I don't know--

Justice Antonin Scalia: But they have to leave him alone.

There's really nothing the EEOC can do to someone, right, except -- what, can the EEOC take them to court?

Ms Latherow: --Yes, they can.

Justice Antonin Scalia: So can the Justice Department, but we don't defer, thank goodness, to the Justice Department's interpretation of the criminal law, do we?

Ms Latherow: No.

Justice Antonin Scalia: No.

Ms Latherow: Your Honor, the concerns from the employment side in this case are substantial.

Under Thompson's theory of the case, anyone who is injured or what he says is aggrieved, anyone who receives injury becomes a protected party.

It's not just bringing the lawsuit, but it's the protected party.

He's not even a silent opposer in this case.

There were -- there were concerns in Crawford about the silent opposer and how do we know who they are.

He says it's based solely upon his relationship.

He has engaged in no protected conduct.

The silent opposer, assuming they can have -- bring a claim, at least engaged in some conduct, but Thompson has no protection under this statute.

He could have very easily gotten the protection.

In our Joint Appendix we submitted the brief that Eric -- or the memo that Eric Thompson submitted to his supervisor just shortly before he was terminated.

He complains in that memo about his compensation, and this is on page 22 and 23 of the joint appendix.

He says--

Justice Antonin Scalia: 22 and 23 of--

Ms Latherow: --The joint appendix.

Justice Antonin Scalia: --Okay.

Ms Latherow: He says in this memo: I am disappointed in compensation this year.

At the time that he submitted this memo to his supervisor, his fiancee had a complaint or a charge with the EEOC pending.

If he had only come forward in this memo, Congress says you would have gotten protection; if he had come forward and said, by the way, I think the way you treat my wife is discriminatory, he would have gotten protection.

The -- the means by which employees get protection under the statute are not very difficult.

All they have to do is to come forward and oppose.

Thompson clearly had an avenue and a means to do that because he was taking -- he was action on his own behalf to complain.

So Thompson wants to bring a claim under -- for Regalado, but he couldn't at that time come forward and step up to the plate and say to the employer,

"Hey, I have a problem with this. "

but yet he wants to come into court and to claim his right -- or to claim her rights as a basis to bring this suit.

According to the EEOC statistics, in 1992, when data first began being collected, 14.5 percent of charges filed with the EEOC were retaliation claims.

By 2009 that had risen by 31 percent.

In the Chamber's brief on page 2, they submit or recite to a study that was published in 1994 saying that the average cost to defend an employment litigation in 1994, when the study was published, was $120,000.

In this case what Thompson would propose is to give protected party to a wide range of people; and with respect to the government's position today, at the Sixth Circuit Court of Appeals they advocated that there would be no limitation, that everyone would get the protection.

That's a broad -- that is a lot of protection for people, and I can tell you that employers who are faced with someone in a protected party, they are -- employers are reluctant to take adverse decisions against them; they're reluctant to implement discipline; they will postpone implementing that decision because they know at some point they're going to have to establish a legitimate nondiscriminatory reason.

When we -- when we point out -- when we point this out in our arguments, the response by Eric Thompson as -- as to who gets the protection, it's in his footnote on page 4 at his reply, he says that the identity of individuals who might have a claim is a function of the employer's own intent.

So, in other words, in order to determine whether someone has protection, you have to look at the employer's intent.

So there are no protected parties anymore until the employer can establish that they had no intent -- or the other way.

Everyone is protected party until the employer can show that he had no intent.

So what that means at the trial is that there will never be--

Justice Stephen G. Breyer: I'm not sure why the employer's intent comes into this.

A is the person who is being retaliated against, and the issue would be did the employer take such action against B as the A would think, quite reasonably -- he would have to reasonably think -- that the actions that the employer took was retaliation, was meant to be -- whatever those words were, was -- it might well have dissuaded a reasonable worker from making or supporting a charge of discrimination.

Ms Latherow: --But the position that's set forward by Thompson is you determine whether someone is a protected party by looking at the intent of the employer.

Justice Stephen G. Breyer: Well, you would have to show he had a retaliatory intent, that's true, but that's true however he retaliates.

Ms Latherow: That's true at trial, though, after a plaintiff gets past his initial burden of proof, and in this case the plaintiff is going to be able to establish their burden of proof solely by saying that they were a protected party and there was intent on the other side.

That is going to shift the burden to the employer at the outset of the case to prove that there was no retaliation, that there was no intent.

Your Honor, in conclusion, the Sixth Circuit Court of Appeals was correct.

The Sixth Circuit determined that Eric Thompson who was not discriminated against had no protection under the statute.

This Court clearly held in Burlington that the anti-retaliation provision of Title VII is designed to protect employees based upon what they do, based upon their conduct.

In this case Eric Thompson engaged in none of that behavior, he had no conduct, he did not come forward on behalf of anyone; yet he is here asking for remedies, remedies that really should belong to Regalado.

There is no reason that Regalado could not have brought this case.

There -- if the concern is that employers are going to discriminate against employees, the response to that is that employers will still be held liable and can still be held liable, and that is by the person who is discriminated against from bringing the suit.

We ask that the Sixth Circuit Court of Appeals decision be affirmed.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Schnapper, you have 3 minutes remaining.

REBUTTAL ARGUMENT OF ERIC SCHNAPPER ON BEHALF OF THE PETITIONER

Mr. Schnapper: Thank you, Your Honor.

I just have a couple quick points.

Justice Ruth Bader Ginsburg: Mr. Schnapper, in the point you are making, would you have an answer to the -- this point that was made about the burden of proof?

The argument was that you wouldn't have McDonnell Douglas anymore and you wouldn't know how to proceed on this third-party claim.

Mr. Schnapper: Your Honor, McDonnell Douglas -- the particular formula in McDonnell Douglas was for hiring cases.

The courts have readily adapted it to other kind of cases where, depending on the nature of the claim, the plaintiff produces some minimal amount of information and the employer is required to -- to articulate a reason, but I don't think it would be a problem here.

Getting back to the question that was asked at the--

Justice Sonia Sotomayor: I'm not sure why not.

Mr. Schnapper: --What?

Justice Sonia Sotomayor: I'm not sure why not.

Plaintiff comes in and says I engaged in protected activity.

They--

Mr. Schnapper: Well, probably -- the other person did.

Justice Sonia Sotomayor: --The other person did.

They retaliated against me.

How do you -- then the employer always has the burden to come forth and give an explanation as to why?

What would be -- the prima facie case generally is they treated me differently than similarly situated people.

I complained at a time close to my firing; there's a whole series of prima facie elements.

Mr. Schnapper: Well, there has to be -- right.

There has to be some evidence that could plausibly give rise to -- to an inference of motive.

Even if I were complaining that I was retaliated against, I can't just come in and say I engaged in protected activity and was fired.

I would need more than that.

So you would need that additional amount here, plus you would also have to have some evidence to give rise to an inference that this third party was selected as a victim.

So it wouldn't -- you could -- you could adapt it.

But getting back to what was asked earlier, there's no question the burden of proof is on the plaintiff at all times to establish motive; and as we get particularly far afield from family members, someone closely associated with the plaintiff, it is going to be difficult to -- to establish, to meet that burden.

Chief Justice John G. Roberts: What happens in the -- what happens in the animal shelter hypothetical that your friend proposed?

You know, the North American Stainless -- or -- funds the animal shelter of -- that -- where the wife works, and they cut off their funding, as a means presumably of--

Mr. Schnapper: I don't -- I don't -- I think this Court's decision in Burlington Northern makes it clear that the plaintiff wouldn't have to be an employee.

In that case one of the questions was could you retaliate against an FBI agent by not protecting his wife from being murdered?

I think that would be a pretty good way to -- to keep people from complaining.

But I think the Burlington Northern limitation would -- you know, would have some traction in these cases.

The animal shelter seems unlikely.

But the burden of proof is there.

As the -- as the relationship becomes more attenuated, once you get past family members, I think it's going to be difficult, even at summary judgment for these cases to survive.

And--

Chief Justice John G. Roberts: --Thank you.

Thank you, counsel.

The case is submitted.

Print this transcript Transcript: 

Justice Antonin Scalia: This case is here on writ of certiorari to the United States Court of Appeals for the Sixth Circuit.

Until 2003, both petitioner Eric Thompson and his fiancée, Miriam Regalado, were employees of respondent North American Stainless or NAS.

In February 2003, the Equal Employment Opportunity Commission notified NAS that Regalado had filed a charge alleging sex discrimination.

Three weeks later, NAS fired Thompson.

Thompson sued NAS under Title VII claiming that the company had fired him in order to retaliate against Regalado, his fiancée, for filing her charge with the EEOC.

The District Court granted summary judgment to NAS concluding that Title VII does not permit third party retaliation claims.

The en banc Sixth Circuit affirmed, reasoning that because Thompson did not “engage in any statutorily protective activity, either on his own behalf or on behalf of Miriam Regalado, he is not included in the class of persons for whom Congress created a retaliation cause of action”.

In an opinion filed with the clerk today, we reversed the judgment of the Sixth Circuit.

Title VII makes it an unlawful employment practice for an employer to retaliate against an employee for filing a charge with the EEOC.

It grants a cause of action to “the person claiming to be aggrieved by the alleged unlawful employment practice”.

In the procedural posture of this case, we are required to assume that NAS fired Thompson in order to retaliate against Regalado for filing a charge of discrimination.

The case, therefore, presents two questions.

The first is whether NAS' firing of Thompson constituted unlawful retaliation.

We hold that if the facts alleged by Thompson are true, it did.

In a case called “Burlington Northern and Santa Fe Railroad Company versus White”, we held that Title VII's anti-retaliation provision prohibits any employment -- any employer action that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination”.

We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity, if she knew that her fiancée would be fired.

The second and more difficult question is whether Thompson may sue NAS for its alleged violation of Title VII.

The statute provides that “a civil action may be brought by the person claiming to be aggrieved”.

Thus, if Thompson is aggrieved within the meaning of the statute, he may sue.

In the case of ours from 1972 called “Trafficante versus Metropolitan Life Insurance Company”, we suggested in a dictum that the Title VII aggrievement requirement conferred a right to sue on all who met the minimal requirement for standing established by Article III of the Constitution.

We think that dictum was too expansive.

If any person injured in the Article III sense by a Title VIII violation could sue, absurd consequences would follow.

For example, a shareholder would be able to sue a company for firing a valuable employee for racially discriminatory reasons, so long as he could show that the value of his stock decreased as a consequence.

At the other extreme is the position urged by NAS that “person aggrieved” is a term of art that refers only to the employee who engaged in the protected activity.

We know of no other context in which the words carry this artificially narrow meaning, and if that is what Congress intended it would more naturally have said “person claiming to have been discriminated against” rather than person claiming to be aggrieved.

We see no basis in text or prior practice for limiting the latter phrase to the person who was the subject of unlawful retaliation.

In our view, there is a common usage of the term “person aggrieved” that avoids the extremity of equating it with Article III and yet is fully consistent with our application of the term in Trafficante.

The Administrative Procedure Act authorizes suit to challenge a federal agency by any “person adversely affected or aggrieved within the meaning of a relevant statute.”

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.

We hold that the term “aggrieved” in Title VII incorporates this test, enabling suit by any plaintiff with an interest sought to be protected by the statute, while excluding plaintiffs who might technically be injured in an Article III sense but whose interests are unrelated to the statutory prohibitions in Title VII.

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.

The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings where the Court is unanimous except for Justice Kagan who took no part in the consideration or decision of this case.

Justice Ginsburg has filed a concurring opinion in which Justice Breyer has joined.