In Thompson v. North American Stainless , 131 S. Ct. 863 (2011), the U.S. Supreme Court held that an employer engaged in unlawful retaliation by terminating a current employee (Eric Thompson) if the termination was motivated by retaliation against the employee’s then-fiancée (former employee, Miriam Regalado) because she filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC). The Court found this to be so even though Thompson had not himself engaged in any “protected activity” typically necessary as a prerequisite to such claims.

The decision is a significant departure from prior Third Circuit precedent which — until the Thompson decision — held that so-called “third-party” retaliation claims were barred by the plain language of Title VII. Fogleman v. Mercy Hosp., Inc. , 283 F.3d 561 (3d Cir. 2002). Fogleman relied upon the language of Title VII (42 U.S.C. §2000e-3(a)), which states that it is unlawful for “an employer to discriminate against any of his employees … because [the employee] has opposed any practice made an unlawful employment practice [by Title VII] or because he has made a charge, testified, or participated in any manner in an investigation, proceeding, or hearing,” and the notable absence of any language in the statute prohibiting an employer from taking action against an employee who has not engaged in protected activity.

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