A decision by the United States Supreme Court in January opened the door to a broader interpretation of the anti-discrimination laws. In the case before the Court, a female employee filed a sex discrimination complaint with the Equal Employment Opportunity Commission and then three weeks later the company fired Mr. Thompson, who was her fiancé. The company lawyers argued that Title VII of the Civil Rights Act does not allow third parties to bring claims of retaliation but only the individual who themselves lodged the discrimination complaint. However, the Supreme Court of the United States in an 8-0 decision said that Mr. Thompson was protected by Title VII.

Thompson was not an accidental victim of the retaliation but, in effect, was collateral damage to the employer’s unlawful act. By terminating him they were retaliating against the female who had filed the charge and that was an unlawful act of punishment against her, although it was indirect. Mr. Thompson was in the “zone of interest” to be protected by Title VII and thus has standing to sue.

When does an office romance qualify as a close relationship? What if the couple had only been dating for a week or two? These are the issues left for future cases and future employers. It is a warning to employers to consider whether the person they are firing has a relationship to the complaining party such that it would be considered retaliation.

Douglas, Leonard & Garvey represents employees in discrimination and retaliation cases but we know that each case turns on its own unique and individual facts.

You know you are about to be fired for doing the right thing, or because you complained about sexual harassment.  You have emails or memos from your boss or co-workers which you know will prove the truth of your allegations.  Can you take them with you if you are fired or when you quit after the retaliation becomes too much for you to endure?

The answer, of course, is that it depends.  The wisdom of taking materials you obtained or where given access to through your employment, so that they might be used in a lawsuit, varies with the circumstances.  If your employer has a policy prohibiting taking work-related materials home with you, or using them for any non-work-related purpose, then sending e-mails home or taking documents with you on the way out may have a negative impact on your case.

When there is a policy against personal use or removal of work-related material, and your employer discovers in the course of your lawsuit that you removed work-related materials from your employer’s premises, it is sometimes possible for the employer to effectively “re-fire” you even after you have left their employment, for violating a company policy.  In those cases where this rule (which is termed the “after-acquired evidence rule”) is applicable, your former employer may be able to use it against you to substantially limit your ability to recover certain damages, particularly lost wages and benefits.

Therefore, if you know your employment situation is looking bleak due to sexual harassment, illegal discrimination, or retaliation for your doing the right thing, you should contact a trustworthy employment lawyer with real trial experience.  One of the things you should discuss, if possible, before you resign or before your employer has a chance to terminate you, is whether to make copies of e-mails and other documents that might help your case.