Six Degrees of Retaliation
The Supreme Court tries to determine if your fiance can be fired for your sex-discrimination complaint.
Leigh Gross Latherow represents North American Stainless, and she immediately accepts that Regalado could have sued and recovered on behalf of Thompson. Sotomayor starts to ask if she is seriously willing to commit her client to that position but then says, "I won't do that to you."
Scalia observes that if North American Stainless concedes that Regalado could have sued on Thompson's behalf, the employer still has no idea "who he has to treat with kid gloves." Latherow comes back at him with a hypothetical where there is retaliation but no one eligible to sue: "For example, if an employer announced a proposition that it was going to fire an employee at random whenever someone filed an EEOC charge, I might not file a charge because I wouldn't want someone, even someone who I didn't know, to be terminated ..." Scalia will later describe this as the "World War II Nazi scenario."
But Latherow follows with yet another other-worldly hypothetical, wherein, this time, the spouse of the North American Stainless employee doesn't work for the company, but instead runs "an animal shelter in Carrolton, Ky. ... but his only source of revenue was a generous gift from North American Stainless." And she goes on to explain that in retaliation the company withholds its big Christmas gift. Or some such. Even Roberts looks pole-axed by what appears to be counsel offering up an example of 16th-degree retaliation.
Justice Stephen Breyer, unaccustomed to being out-weirded by his oral advocates and their elaborately complex hypotheticals, amplifies on this scenario to ask whether retaliation can similarly be claimed by "the barber who doesn't get the haircut anymore because the person fired doesn't have any money or the landlord who can't get his rent?" He works his way from here on to the aggrieved proprietor of the local bowling alley before proposing a new rule: "hurting Mrs. Smith—the child, the wife, even the co-worker," if they were fired merely to hurt someone, they all can claim retaliation.
Latherow politely replies: "Your Honor, respectfully, there's no basis in the statute to adopt that rule." At which point Breyer cheerfully replies, "And that is the problem with my theory."
And that's when the laughing goes from snickers to guffaws.
Oddly enough, in this case, Breyer's theory seems also to be Scalia's theory, which is (conveniently) also the EEOC's theory, and might also be everyone else's theory, too: They just shouldn't be allowed to fire your fiance when you claim gender discrimination. But how to find that in this statute, without also inviting in a gaggle of aggrieved shareholders, landlords, barbers, and—inevitably—competitive bowlers. Ah, well there's the tricky part. I can count at least four votes to draw the line somewhere before the barber. But I'm not sure I can count even one vote who might coherently explain why.
Dahlia Lithwick writes about the courts and the law for Slate.
Statue of a female steelworker by Hemera/Thinkstock.