Suppose one of your employees files an EEOC charge or reports some other statutory violation by your company. Then s/he resigns. You are not sorry to see him or her leave. You even fantasize about getting back at him/her. Then one day a prospective employer calls you for a reference on that very same employee. You let loose and tell the reference-seeker exactly what you think of your former employee. It may not be nice, you reason, but it’s true, so it’s not defamation. Since s/he is no longer your employee you do not have to worry about a retaliation claim. Think again! Really? How can that be? The law says employers cannot retaliate against employees. Ex-employees are not employees anymore. So what gives? In fact, a number of anti-retaliation laws do cover retaliatory actions against former employees. Read on after the jump to learn more…
The anti-retaliation provisions of Title VII of the Civil Rights Act of 1964 seem to have been tested the most. (Click here to review the basics of Title VII’s anti-retaliation provisions.) Under Title VII, employers cannot retaliate against employees who complain of or in any way oppose behavior they reasonably believe is discriminatory. If the subsequently resigns or is terminated s/he is no longer an employee, so an adverse action against him/her is not forbidden under Title VII, right? No so, said the United States Supreme Court in Robinson v Shell Oil Company 519 U.S. 337 (1997). Shell Oil gave a prospective employer a negative reference about Mr. Robinson, a former employee, who had filed an EEOC charge in which he alleged that Shell fired him because of his race.
Here, in a nutshell was the court’s reasoning: a) the statute “lacks any temporal qualifier and is consistent with either current or past employment”; b) other Title VII provisions clearly define “employees” as more than just current employees, and two sections of Title VII authorize remedial action by a court or the EEOC “which may include…reinstatement or hiring of employees”; c) Since Title VII expressly protects employees from retaliation for filing an EEOC charge alleging unlawful discharge, Title VII necessarily includes ex-employees; d) holding that Title VII only protects current employees “would effectively vitiate much of the protection” intended by Title VII. The Supreme Court extended this principle somewhat in 2006 in Burlington Northern & Santa Fey Ry. v. White 548 US 53, holding that while the anti-discrimination provisions of Title VII were, by their wording limited to workplace terms and conditions, the anti-retaliation provisions had no such limitations. In other words, the employee can allege retaliation based on actions that extend beyond the workplace and beyond the employee’s working conditions.
Since Robinson, The Second Circuit Court of Appeals found a former supervisor falsely advising a prospective new employer that a former employee sued was retaliatory conduct in Jute v. Hamilton Sundstrand Corp 430 F.3d 166 (2nd Circuit 2005). A former employer faxing copies of a former employee’s EEOC charge against it to his new employers was deemed impermissible retaliation in Coles v. Deltaville 2011 WL 666050 (E.D. VA 2011).
What other types of post-employment actions might be prohibited then?
- Spreading negative rumors about a former employee who had filed a national origin discrimination charge with the EEOC (Shukh v Seagate Technology, LLC No. 10-404 (D. Minn. March 30, 2011).
- Challenging a former employee’s award of Unemployment Benefits less than a month after the employee was terminated and had filed an EEOC charge (Ward v. Wal-Mart Stores, Inc. 140 F. Supp. 1220 (D.N.M. 2001). Note that even an exercise of legal rights can be viewed as retaliatory. While Wal-Mart’s policy was to appeal all awards of Unemployment Benefits, under New Mexico law, benefits could only be denied in cases of employee misconduct. Since Wal-Mart acknowledged that the employee was not terminated due to misconduct, the court held that a reasonable jury could find the appeal retaliatory.
- Lawsuit against employee for breach of restrictive covenant after employee resigned because of sex discrimination. ( Durham Life Insurance Co. v. Evans 166 F.3d 138 (3rd Cir 1999).
- Foreclosing on a former employee’s property, which was collateral for a loan to the employee, who had complained of discrimination (Arthur Young & Co. v. Sutherland 631 A.2d 354 (DC Ct Appeals, 1993).
- The EEOC takes the position that refusal to hire someone because s/he filed an EEOC charge against his/her former employer.
- A Florida appeals court ruled that a former school teacher who filed an EEOC charge and resigned could sue for retaliation based on the school board prohibiting her from continuing as a volunteer mentor six months after her resignation (Gates v. Gadsen County School Board, Case No. 1D09-3636 (2010).
What about statutes other than Title VII? According to the 4th Circuit, the anti-retaliation provision of the Fair Labor Standards Act (FLSA) does not protect job applicants. In Dellinger v Science Applications International Corp 2011 WL 3528750 (4th Cir., 2011), Ms. Dellinger sued her former employer, alleging wage and hour violations. She then applied for a job with Science Applications and disclosed the lawsuit when filling out a required security clearance form, resulting in withdrawal of a job offer. Ms. Dellinger sued Science Applications, alleging retaliation for exercising her right to file a FLSA claim. The court found that the FLSA’s use of the word “employee” meant “those in an employment relationship with their employer”. The Court reasoned that “The notion … that any person could then sue any prospective employer claiming that she was denied employment because of her past litigation would clearly broaden the scope of the FLSA beyond its explicit purpose of fixing minimum wages and maximum hours between employees and employers”. Remember, this is one circuit’s interpretation regarding applicants, not ex-employees, and this issue has not been decided by the US Supreme Court.
How about state anti-retaliation provisions? The Supreme Judicial Court of Massachusetts in Psy-Ed Corp v Klein 459 Mass 697 (2011) held that former employees can bring retaliation claims under Massachusetts law against their former employers for post-employment actions, including commencing meritless litigation against a former employee. The New Jersey Supreme Court in Roa v Roa 200 NJ 1225 (2010) ruled that a timely filed post-discharge retaliatory act (in this case prematurely terminating a former employee’s medical insurance coverage) can be the basis of a retaliation claim under the New Jersey Law Against Discrimination.
So how does an employer minimize or avoid the risk of post-employment retaliation claims? Here are some options:
- Understand and accept that the risk of facing retaliation allegations does not end with the discharge of an employee. Post-discharge actions you see routine, can, in fact, form the basis for a retaliation claim.
- When giving a reference, consider only providing basic information, such as name, position, dates of employment, job functions and maybe salary and names of supervisors.
- When providing performance information, use only information documented in performance reviews or elsewhere in the former employee’s personnel file.
- Refrain from voicing subjective thoughts and criticisms of former employees when speaking with prospective employers.
- Do NOT ever disclose lawsuits, charges or internal complaints filed by a former employee.
- Have a department or person with no knowledge of the former employee’s prior complaints handle all reference requests.
- Proceed with caution when denying or challenging a former employee’s claim to unemployment, continuation of health care, or other post-employment benefits.
- If contemplating litigation against a former employee, consider the timing and whether the employee has filed any charges or lawsuits or made any internal complaints in the past and evaluate the impact of that information.
- Refrain from and discourage any gossip about any employees—inside or outside the workplace.
- Do not allow a former employee’s activity to play any part in hiring, promotion or any other employment decisions of the former employee’s spouse or other family members.
Bottom Line: Once the employment relationship is terminated, do your best to move on! If you feel that you have a legitimate claim against him or her, and if s/he has previously filed a charge, lawsuit or internal complaint, think twice—and seek input from competent in-house or outside counsel!
Wait a minute–didn’t the US Supreme Court recently decide a case regarding workplace retaliation? Yes it did–and we will talk about it next week!
Disclaimer: Contents of this post are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent local employment counsel on any issues discussed here.
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