Since 1997, retaliation claims with the EEOC have almost doubled, and recent case law provides yet another way for employees (and their lawyers) to make a retaliation claim.

A recent case, McGhee v. Healthcare Services Group, et al., involved a married couple who each worked for separate companies that had a business relationship. The wife worked for a nursing facility, while the husband was employed as an account manager for the vendor hired to ensure the cleanliness of the same nursing facility. In his position, the husband had some responsibility for managing the contract with the nursing facility.

According to the lawsuit, the wife believed she was terminated due to her disability, and filed a charge of discrimination. The wife alleged that after her charge was filed, the nursing facility, through its administrator, sought to have her husband fired from his account manager position with the vendor. During the course of several months, complaints from the nursing facility about the husband’s work increased and the nursing facility reportedly requested several times that the husband be terminated. The husband alleged the pressure from the nursing home ultimately worked, and that his termination paperwork stated, “It is best to go in another direction with management to keep the client satisfied.”

The husband filed suit against his employer, the nursing facility, and the nursing home administrator based on two legal theories — tortious interference with a business relationship and retaliation. The nursing home sought to dismiss the retaliation complaint because the husband did not participate in the protected activity since the charge had been filed by his wife.

Relying on the recent U.S. Supreme Court decision in Thompson v. North American Stainless, where a fiancée was allowed to pursue a retaliation claim, the court concluded that the retaliation claim was legally permissible. The nursing facility’s attorney had specifically argued that Thompson did not apply, because in Thompson, the fiancée worked for the same company, and here the husband worked for a different company. The court applied the reasoning in Thompson, a “zone of interest” test would only prohibit retaliation claims when the interests of the plaintiff (the husband here) either were too marginally related or were inconsistent with the statute’s purpose. In this case, the retaliation claim was allowed because the wife’s employer “intended to injure [the husband] to punish the employee [the wife] who engaged in the protected action.”

See also Foley’s Legal News: Employment Law Update (Week of January 31, 2011) for additional information on the Thompson decision.