U.S. Supreme Court Affirms Third-party Standing In Employer Retaliation Suit
January 24, 2011
In a unanimous opinion written by Justice Antonin Scalia, the U.S. Supreme Court held that employers may not retaliate against third parties who are "within the zone of interests" to be protected by Title VII of the Civil Rights Act of 1964 (Title VII). In Thompson v. North American Stainless, LP (No. 09-0291), Eric Thompson claimed he was fired because his fiancée filed an EEOC charge of sex discrimination. At the time of his fiancée's complaint and Mr. Thompson's termination, their relationship and engagement was common knowledge at North American Stainless (NAS). Slightly more than three weeks after the EEOC notified NAS of the complaint, NAS terminated Thompson's employment. Thompson sued alleging retaliatory discharge based on the protected activity of his fiancée, a co-worker; Thompson did not allege that he had engaged in protected activity himself. The trial court granted the employer's motion for summary judgment. A panel of the U.S. Court of Appeals for the Sixth Circuit affirmed the decision, but the case was then reheard en banc by the full Sixth Circuit. The court described the sole issue as whether section 704(a) of Title VII created a cause of action for third-party retaliation for persons who did not engage in protected activity. The en banc Sixth Circuit was very divided, with three separate dissents filed by six judges.
The Supreme Court, however, had "little difficulty concluding that if the facts alleged by Thompson are true, then NAS's firing of Thompson violated Title VII." Affirming its prior decision in Burlington Northern v. White, the Court found that Title VII's anti-retaliation provision is sufficiently broad that "there is no textual basis for making an exception to it for third-party reprisals."
With respect to whether Thompson has a cause of action, Justice Scalia expanded the reach of his own rule from Lujan v. Defenders of Wildlife, finding that Thompson was "within the zone of interests" sought to be protected by Title VII's "persons aggrieved" language. "Thompson is not an accidental victim of the retaliation - collateral damage, so to speak, of the employer's unlawful act," Scalia wrote. "To the contrary, injuring him was the employer's intended means of harming [his fiancée]. Hurting him was the unlawful act by which the employer punished her. In these circumstances, we think Thompson well within the zone of interests sought to be protected by (anti-retaliation law.) He is a person aggrieved with standing to sue."
President Obama Signs Ledbetter Fair Pay Act
January 29, 2009
On January 29, 2009, President Obama signed the Lilly Ledbetter Fair Pay Act, which was the first law passed by the new Congress and the law signed by the new President. The new law overturns the U.S. Supreme Court’s decision in Ledbetter v. Goodyear Tire and Rubber Co., Inc., 550 U.S. 618 (2007), where the Court held by a 5-4 vote that the plaintiff did not file a timely charge within the statutory 180/300-day time limit. The law restores the previously widely accepted “paycheck accrual” principle that each new paycheck or post-retirement benefits check serves as a potentially unlawful employment practice for which an employee may timely file a charge within the 180/300 EEOC charge filing period. The Supreme Court's Ledbetter decision actually rewarded employers for actively hiding discriminatory pay practices. "If an employer succeeded in hiding an unlawful pay decision for 180 days," explained NELA Executive Director Terisa E. Chaw, "then the employer was free to continue the discrimination for the remainder of the employee's career. The restoration of the paycheck accrual rule will give victims of pay discrimination a fair opportunity to uncover and challenge unlawful pay decisions."
In remarks at the signing ceremony for the Act, President Obama recognized Lilly Ledbetter’s courage and tenacity:
"Now, Lilly could have accepted her lot and moved on. She could have decided that it wasn't worth the hassle and the harassment that would inevitably come with speaking up for what she deserved. But instead, she decided that there was a principle at stake, something worth fighting for. So she set out on a journey that would take more than ten years, take her all the way to the Supreme Court of the United States, and lead to this day and this bill which will help others get the justice that she was denied."
--President Barack Obama, in remarks at the signing ceremony for the
Lilly Ledbetter Fair Pay Restoration Act on January 29, 2009.
Congress Revives the Americans With Disabilities Act
September 25, 2008
The ADA Amendments Act (ADA-AA) of 2008 was signed into law in a White House ceremony on September 25, 2008, after identical bills were passed by the
Senate (unanimously, on September 11th) and the House (by voice vote, on
September 17th). The law's effective date is January 1, 2009. The ADA-AA
was Congress's response to the Supreme Court's stringent construction of the
terms "disability" and "significantly limits a major life activity" in ways
that have drastically restricted the class of workers who can rely on the
ADA to secure equal employment opportunities. For example, the ADA-AA will
overrule the U.S. Supreme Court's 1999 decision in Sutton v. United Air
Lines, Inc., which required that "mitigating measures" like medication be
taken into account when evaluating whether an individual has a "disability" within the meaning of the ADA - a decision that contravened appellate
decisions nationwide, EEOC regulations, and the ADA's legislative history. Specific language in the ADA-AA was the result of historic negotiations
between the disability and civil rights communities, on the one hand, and
the business community, on the other, working with the bill's chief
proponents in Congress.
The ADA-AA significantly changes the current law by:
- explicitly removing the Supreme Court's requirement in Sutton that
mitigating measures be considered when evaluating whether an individual has
- a disability within the meaning of the ADA;
- including language in the findings and purposes section to clarify
that the courts' previous interpretations of the term "substantially limits" [in the phrase "substantially limits a major life activity"] were too
- defining "major life activity" to include "operation of a major
bodily function" such as the neurological, circulatory, and reproductive
systems (the provision contains a non-exhaustive list);
- eliminating the requirement that an individual asserting a "regarded
as" claim show that s/he has an impairment that substantially limits a major
- clarifying that an impairment that is episodic or in remission is a
disability if it would substantially limit a major life activity when
- directing the courts to interpret the ADA as a remedial statute,
i.e., liberally; and
- conforming the definition of "disability" under the federal
Rehabilitation Act, which covers federal, state, and local government
employees, to the ADA-AA.
Congress Enacts New Product Safety Whistleblower Law
August 13, 2008
On July 31, 2008, Congress enacted a new whistleblower law designed to promote consumer product safety. The new federal legislation specifically was enacted to protect public and private sector employees who disclose to their employers, a regulatory agency or a state Attorney General any perceived violation of the Consumer Product Safety Commission. The law also provides protection for employees who refuse to participate in violations of the Consumer Product Safety Commission Act. Obviously, the purpose of this legislation was to protect employees who, in good faith, report potential safety problems connected with consumer products and to prevent retaliation against such an employee either in the private or public sector. Any employee who, in good faith, reports or discloses potential violations of the Consumer Product Safety Commission Act, is protected from retaliation by this legislature.
Under the new whistleblower legislation, an employee who believes that they have been unlawfully retaliated against for disclosing a violation of the Consumer Product Safety Commission Act must file with the Occupational Health and Safety Administration (OHSA) a complaint of retaliation within 180 days of becoming aware of the retaliatory action. Afterwards, on an administrative basis, OHSA will conduct an investigation. Either the employee or the employer can request a hearing before an Administrative Law Judge (ALJ) and can appeal an adverse decision to the Department of Labor’s Administrative Review Board. If the Department of Labor has not issued a final decision within 210 days after the filing of the complaint, an employee may remove the complaint to Federal Court and ask for a jury trial.
Under the new Act’s provisions, in order to deter employers from retaliating against employees who, in good faith, report violations or potential violations of the Consumer Product Safety Commission Act, a prevailing employee who has been unlawfully retaliated against will be entitled, among other things, to reinstatement, back pay, compensatory damages and litigation costs including reasonable attorney’s fees.
Indiana Law for Breastfeeding Mothers Goes into Effect
July 1, 2008
Beginning July 1, 2008, a new Indiana law goes into effect that will protect
mothers who wish to breastfeed in the workplace. The law will affect
businesses with 25 or more employees, as well as the state and its political
The new law requires employers to provide paid break time and a private
location, other than a toilet stall, where an employee can pump breast milk
in privacy. In addition, the employer must either provide a refrigerator
(or other cold storage space), or allow the employee to provide their own portable cold storage device, for keeping milk that has been pumped until
the end of the employee's work day. The law does not specify whether an
employee who is denied her rights under the statue can take legal action
against her employer, which will likely be the subject of litigation at some
point in the near future.
New Leave Rights Granted to Families of Soldiers
January 28, 2008
For the first time since it was enacted in 1993, the Family and Medical
Leave Act (FMLA) has been expanded to give some employees new leave rights.
These amendments, providing leave for employees with family members in the
armed forces, which was signed by President Bush on January 28, creates two
new categories of FMLA leave for the relatives of military personnel.
Effective immediately, a spouse, child, parent or next of kin of a member of
the Armed Forces (including a member of the National Guard or Reserves) may
take up to 26 work weeks of leave to care for the soldier if he or she is "undergoing medical treatment, recuperation, or therapy, is otherwise in
outpatient status, or is otherwise on the temporary disability retired list,
for a serious injury or illness." A "serious injury or illness" is defined
as one that was incurred in the line of duty and may render the soldier
medically unfit to perform the duties of office, grade, rank or rating.
The new legislation also permits an employee to take FMLA leave for any "qualifying exigency" - as that term will be defined by the DOL in
forthcoming regulations - arising out of the fact that the employee's
spouse, child or parent is on active duty, or has been notified of an
impending call or order to active duty, in the Armed Forces. Note that this
provision of the statute is not effective until the DOL issues final
regulations defining "qualifying exigency."
Amy Ficklin DeBrota Named Indiana "Super Lawyer" for
February 22, 2007
The DeBrota Law Firm LLC is proud to announce that Amy
Ficklin DeBrota has
been named a 2007 Indiana Super
Lawyer in the area of Employment Litigation.
The award is designed to recognize
the top 5% of lawyers in each field of
legal practice. Attorneys are
asked to nominate the best lawyers they have
personally observed in action,
whether as opposing counsel or co-counsel, or
through other first-hand observation
in the courtroom. Nominated attorneys
are then reviewed, evaluated
and investigated by their peers and legal
magazine publisher Law & Politics. Only attorneys with
the highest point
totals in each practice area
are selected. More information about Super
Lawyers is available at www.superlawyers.com.
District Court Orders Distribution of Notice Regarding
FLSA Lawsuit Against Residential CRF, Inc. and CRF First Choice,
Inc. to Direct Care Staff
December 22, 2006
United States District Court Judge John D. Tinder granted collective
action status and ordered the distribution of a notice regarding
the case of Paula Crane and
Linda Brewster et al. v. Residential CRF, Inc. and CRF First Choice,
Cause No. 1:05-cv-01883-JDT-TAB, to all individuals employed
in Indiana by CRF as Direct Care Staff, either Levels I and/or II,
who worked a 24/7 shift any time from December 20, 2002, until the
present, excluding those individuals who only worked at facilities
in Fort Wayne, Indiana (who are covered by a different lawsuit.)
This notice will advise the recipients of the opportunity to join
in the pending lawsuit, which seeks compensation for unpaid overtime
for Direct Care Staff who worked a 24/7 shift. On January 2, 2007,
Plaintiffs submitted a proposed notice for the Court’s approval.
Amy Ficklin DeBrota is lead
counsel for the Plaintiffs, Paula Crane and Linda Brewster. If you
would like more information about this case, or if you are or were
a Direct Care Staff employee of CRF, contact us via email
or telephone at (317) 848-5555 or toll free at (888) 273-1326. December
22, 2006 Entry is available here
and the Notice is available here.
Global Settlement for Unpaid Overtime and Wage Claims
Patricia Veerkamp et al. v. U.S. Security Associates,
U.S. District Court for the Southern District of Indiana,
1:04-CV-0049 and Related Cases in Ohio, New Jersey, Tennessee and
November 6, 2006
The DeBrota Law Firm LLC is pleased to announce a global settlement
for approximately 275 current and former security officers in Indiana,
Ohio, New Jersey, Tennessee and Kentucky. The Amended Complaint
filed in this case alleged that U.S. Security Associates, Inc. required
the Plaintiffs and similarly situated employees to report to work
prior to the start of their shift, but did not pay them for that
time. On March 15, 2005, U.S. District Court Judge David F. Hamilton,
ordered notice to "present and former security officers employed
by U.S. Security Associates, Inc. who work or worked at any Indiana
location from December 11, 2000 until the present.” Shortly
after this ruling, lead counsel Amy DeBrota filed similar cases
on behalf of employees in Ohio, New Jersey, Tennessee and Kentucky.
The parties reached a global settlement agreement on October 6,
2006. Settlement administration is now in process. If you are a
participant in one of the U.S. Security Associates cases and you
do not receive your settlement paperwork by November 13, 2006, please
The DeBrota Law Firm LLC is Established
April 24, 2006
Ficklin DeBrota is pleased to announce the establishment of
The DeBrota Law Firm LLC.
The firm will primarily focus on providing quality attorney and
mediation services in the area of employment law. Ms. DeBrota has
represented employees in employment
related litigation in Indianapolis and across Indiana for over
10 years, including individual, class
action and multiple plaintiff cases.
For more information, contact us:
The DeBrota Law Firm LLC
715 E. 107th Street
Indianapolis, IN 46280
"Justice will not be served until those who
are unaffected are as outraged as
those who are."
The DeBrota Law Firm LLC, an Indianapolis based employment law firm, provides mediation services, consultations and employee or employer litigation representation in central Indiana and throughout the state. Amy Ficklin DeBrota represents employees with claims for unpaid wages or overtime, unpaid commissions, breach of employment contract, discrimination, equal pay, retaliation, whistleblower actions, as well as other types of employment related legal claims under federal and Indiana state law. She has special interest and experience in representing nurses, doctors, veterinarians and other health care professionals with their employment issues. Further, she provides consultations with small and medium sized employers who are interested in avoiding employment based lawsuits. Ms. DeBrota is not only a lawyer. She is also a registered Indiana mediator who is available to travel to or host mediations regarding employment disputes, personal injury claims, and general civil litigation. She has the legal knowledge and years of experience to allow her to effectively communicate with individuals who are experienced with the law, and with those for whom the legal system is unfamiliar, in order to help everyone concerned realize the benefits of an agreed settlement. Ms. DeBrota is a dedicated, effective Indiana employment law attorney and mediator based in Indianapolis, Indiana.
Family Medical Leave Act