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Thompson v. North American Stainless, LP Amicus Brief

2010-11 preview of the U.S. Supreme Court

While discrimination in the workplace has been unlawful since 1964, it is unfortunately still prevalent, and workers who report potentially unlawful behavior, file discrimination charges or engage in other activity protected by Title VII remain vulnerable to retaliation by employers who seek to punish and deter them from such activity. This is especially true for women in male-dominated environments, as longstanding social science research makes clear that they experience higher levels of harassment and other forms of discrimination than do women in other fields. An extensive body of research further documents that fear of retaliation and other substantial barriers deter workers from reporting discrimination, and that such fears of retaliation are well-founded, especially for women in male-dominated fields.

If the decision below is not reversed, employers will be emboldened to punish a worker’s close associates if the worker complains of discrimination, adding to the risks of reporting unlawful behavior and thus to the pressure to remain silent. Without employees who are willing to report unlawful conduct and file complaints, Title VII's goal of eliminating discrimination in the workplace cannot be achieved.

The case law reinforces research findings that fears of third-party retaliation are not unfounded. It reveals a wide variety of allegations of such employer reprisals against the family members or other close associates of workers who engaged in protected activity. The number and breadth of these allegations suggest that employers not infrequently use such measures as a tremendously effective form of retaliation that may go unremedied unless the court rejects the Sixth Circuit's rule.

To ensure that Title VII's anti-retaliation provisions provide meaningful protection for workers who challenge possible job discrimination, this court should reverse the decision below, and recognize that Title VII permits suit by an employee harmed by the retaliatory actions of an employer in response to the protected activity of close associates.

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