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who was terminated. Burlington frames ation. Based on the opinion’s examples, In addition to his career in academia, the question thusly: is it an act that the zone of interest includes employees Schnapper served as an assistant counsel would dissuade a reasonable worker from seeking protection from their employer, to the NAACP Legal Defense and Educabut would exclude a more tangential victional Fund for 25 years. tim, such as a shareholder of a discrimiAnd as an appellate lawnatory company.18 Thompson was not yer, his name is found in an “accidental victim” of his employer’s almost every seminal Suretaliation.19 NAS intended to injure him preme Court case dealing with employment law, inas a way to harm Regalado. That makes cluding: him an aggrieved person within the zone • Oncale v. Sundowner of interest. Offshore Oil Co., 523 Bottom Line: Third party retaliation U.S. 75 (1998) is actionable if it meets the Burlington • Reeves v. Sanderson Northern standard of retaliation. Even if “Schnapper’s Trio” is a bright spot for employees and their attorneys Plumbing, 530 U.S. the third party did not formally “oppose” 133 (2000) the discrimination or participate in the making a complaint?10 Well, would you • Ash v. Tyson’s Food, 546 U.S. 454 charge process, if he suffered a Title VIIlike to plan a wedding reception on one (2006) type injury and he is within the category income? • Burlington Northern R.R. v. White, of people Title VII is designed to cover, he But what if Thompson was just Regala548 U.S. 53 (2006)3 may sue under Title VII. do’s boyfriend? Or, what if Thompson was just a close friend and not even boyIf you had that kind of track record, Kasten v. Saint-Gobain friend material because he never noticed what would you charge to brief and arNow to the definition of “any.” As in, when Regalado got her hair cut? While gue a case before the Supreme Court? But does “any complaint” include an oral firing a close family member is clearly Schnapper is a steal. He is a full-service 11 complaint? This was the central question retaliatory, whether some other relaappellate lawyer and he does it all pro in Kasten v. Saint-Gobain.20 Lawyers do bono. According to him, “It’s a privilege tionship is close enough to be protected to get involved.”4 Whenever possible, he depends on the context.12 The standard not get paid for the time it takes to put on and take off their lawyer costumes, but wants the client to be there for the oral is an objective one, however, and Burlingplenty of factory workers are supposed to argument because “these aren’t just iston Northern will be the guide.13 5 be paid for “donning and doffing” their sues, these are real people.” The fiancée, Regalado, can sue, but uniforms and protective gear. Because the Here is what you need to know about what about the fiancé, Thompson? After time clock at the Saint-Gobain plant was the legal issues these real people faced. satisfying himself that the idea that peolocated in a room beyond the dressing ple would become engaged to be married area, Kevin Kasten repeatedly made comThompson v. North American existed at the time of the founders, Scalia plaints that he was not being properly Stainless (NAS) turned to the statute, which permits any compensated for his time spent changing In Thompson, prospective bride Miriam person “claiming to be aggrieved” to file clothes.21 He complained high and low, Regalado filed a discrimination charge suit.14 It could be that that phrase is coagainst her employer, NAS.6 NAS sent a extensive with Article III standing: (1) inbut always orally, and always to no avail. jury in fact, (2) that was caused message three weeks later by firing her by the defendant, and (3) can be prospective groom, Eric Thompson. remedied by a court.15 But Title Two questions arose: (1) is the act of firing the fiancé of an employee that VII standing does not stretch complains of discrimination unlawful, quite that far; nor is it so narrow and if so, (2) who is entitled to sue for as to only include the person en7 that violation? The Supremes had “little gaged in protected activity.16 8 difficulty” with the first question. JusInstead, Title VII standing is tice Scalia followed Burlington Northern conferred on “aggrieved perR.R. v. White,9 in writing that it is unlawsons” within Title VII’s “zone of interest.”17 If you have an interful to go after the complainant’s fiancé. That means that Regalado had standest “arguably [sought] to be pro- Justice Breyer wrote for the majority in Kasten v. Saint-Gobain ing to sue for the termination of her fitected” by Title VII’s prohibitions, you are As such, Saint-Gobain denied that Kasten ancé, even though she was not the one among those who can be safe from retalimade “any significant complaint.”22 From

January/February 2012



The Houston Lawyer magazine, January/February Issue, 2012

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