Does “Zone of Interest” Retaliation Require Employment?

Darrell VanDeusen
Darrell VanDeusen

In her blog post of January 27, 2020, my partner Bernadette Hunton reported on the EEOC’s charge statistics in the 2019 fiscal year.  According to the EEOC, nearly 54% of the 72,675 charges filed in fiscal 2019 included a retaliation component.

Now, this percentage may be somewhat meaningless.  A charging party need only check the box on a form to raise a claim, regardless of whether the actual elements of retaliation exist (i.e., a good faith belief of raising discrimination/harassment concerns, and a materially adverse action after doing so).  Over the years I’ve dealt with charges where the “retaliation” allegedly occurred before any concern of discrimination or harassment was raised – a legal and (unless one has a time machine) practical impossibility.  But this got me thinking.

The scope of possible retaliation claims goes beyond just the actions taken against an individual who complains about discrimination.  Following the Supreme Court’s 2011 decision in Thompson v. North American Stainless, LP, 562 U.S. 170 (2011), an individual who is in the “zone of interest” may have a claim for third-party retaliation.  The zone applies to closely-related persons, such as husbands and fiancés, who did not themselves engage in protected activity by opposing an employer’s actions, but suffered harm because someone close to them did.

In Thompson, the fiancé of the woman who claimed discrimination was fired and, said the Supreme Court, qualified for Title VII’s protection.  In doing so, the Court cited Title VII’s language that permits a suit by “a person aggrieved.”  The Court held that this statutory language necessarily is more than a reiteration of the standard for Article III standing.  While the Court previously noted in dictum that Title VII conferred a right to sue on all who satisfied Article III standing, in Thompson it stated that it believed that dictum was “too expansive” and “ill considered.”

The Court also held, however, that the position at the other end of the spectrum advanced by North American, i.e., that the person aggrieved must be the employee who engaged in protected activity, was an “artificially narrow” interpretation and if that had been Congress’s intention, it would have written “person claiming to have been discriminated against” in the statute.  It saw no basis for applying this narrow construction.  The Court noted such a holding would directly contradict its decision in Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205 (1972), which held that residents of an apartment complex were persons aggrieved by discrimination against prospective tenants.

That brings us to two cases falling on opposite sides of the issue of who qualifies for “zone of interest” protection when the person “aggrieved” was not employed by the employer.

In Tolar v. Cummings, 2014 U.S. Dist. LEXIS 111448 (N.D. Ala. Mar. 31, 2014), adopted by, dismissed without prejudice, in part, by Tolar v. Cummings, 2014 U.S. Dist. LEXIS 110435 (N.D. Ala., Aug. 11, 2014), the plaintiffs were never in any employment relationship with the defendants but claimed that the defendants violated Title VII by pursuing a groundless fraudulent transfer lawsuit against them in retaliation for a family member of the plaintiffs’ filing a Title VII lawsuit against the defendants.

The Court denied the defendants’ motion to dismiss because “Plaintiffs are at least ‘arguably’ within the zone of interests protected by [42 U.S.C.] § 2000e-3(a), despite the fact that they were not employees of the Bank. Therefore, Plaintiffs are persons ‘aggrieved’ by an unlawful employment practice under [42 U.S.C] § 2000e-5(f) and have statutory standing.”  2014 U.S. Dist. LEXIS 111448, at *43. See also, McGhee v. Healthcare Servs. Grp., 2011 U.S. Dist. LEXIS 20897 (N.D. Fla. 2011)).

A recent decision from a Texas, however, did not buy this reasoning.  In Simmons v. UBS Fin. Servs., 2020 U.S. Dist. LEXIS 1166 (S.D. Tex. Jan. 6, 2020), the plaintiff’s daughter worked for UBS and brought a pregnancy discrimination claim against the company.  The father, claimed that, after she did so, UBS took “adverse actions’ against him in his role as a third-party wholesaler of life insurance products to clients of UBS.

In so doing, the court specifically rejected the holdings in Tolar and McGhee, stating that “it is undisputed that Plaintiff was not an employee of UBS at the time his daughter filed her charge of pregnancy discrimination with the EEOC or at the time of the alleged adverse actions against Plaintiff. The Supreme Court in Thompson did not hold that a non-employee has standing to sue for retaliation based on protected activity by a third-party employee of the defendant. The law in the Fifth Circuit remains that, absent an employment relationship between the plaintiff and the defendant, the plaintiff lacks standing to bring a Title VII retaliation claim. See Thompson, 562 U.S. at 178; . . . see also Body by Cook, Inc. v. State Farm Mut. Auto. Ins., 869 F.3d 381, 391 (5th Cir. 2017) (‘To maintain a claim under Title VII, the plaintiff must demonstrate an “employment relationship” between the plaintiff and the defendant’). . . .”

Whether zone of interest claims are expanded to cover non-employees will, at least for a while, be a circuit by circuit call.  At some point, however, the Supreme Court will likely be called upon to address the standing issue.



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