Have you ever been accused of retaliation by an someone who was never your employee? Whaaat? I know what some of you are thinking. This crazy lady has really flipped her lid now. Is it left-over spiked punch from Monday night? (Nope sorry, didn’t have any). Is it global warming? (Doubtful, though it gets blamed for a lot of things). Maybe she just really needs to get out more. That one may be true. Even so, I’m really going somewhere with this point, so bear with me. You already know from some of my previous posts (specifically, here, and here for starters) that federal (and state) anti-discrimination laws prohibit retaliating against employees who report or help someone report allegations of discrimination or other misconduct. How does that work when the person complaining of retaliation never even worked for you though? Read on and find out…
OK, let’s use Title VII of the Civil Rights Act for a quick review of the concept of retaliation. Title VII prohibits employment discrimination based on race, color, religion sex, or national origin. Discrimination includes without limitation failure to hire, promote or train an applicant or employee. It can include almost any disparate treatment of any applicant or employee belonging to any of the aforementioned categories. Title VII also prohibits retaliation against any employee (or applicant) for complaining of discrimination or assisting another employee making such a complaint. Most statutes affording rights to an employee prohibit retaliating against an employee exercising their rights thereunder. That still begs the question, though: How could any of this apply to someone who never worked for you? Hold on, I’m getting there.
Suppose someone applies to your company for a job. For our discussion the specific job doesn’t matter. It can be any job. Suppose that person is exceedingly, maybe even stupidly, qualified for the job. It’s a no-brainer. You still do your due diligence though. You want to know that the candidate will fit in with your company culture. You then find out that your plum candidate in the not-too-distant past sued a former employer for discrimination. Your interest in the candidate has now cooled considerably. You don’t want a litigious person in your workplace. You’re worried that s/he is a potential “troublemaker”. So you reject the candidate. To your shock, s/he sues and alleges retaliation.
Can that really happen? Yep. In fact it just did a few months ago. The EEOC filed suit on behalf of Shaun Woody against Red Bird Machinery Repair, LLC, under essentially the very same facts. Where’s the retaliation though? According to the EEOC, Title VII makes it illegal to discrimination against or terminate an employee who files a discrimination charge (or lawsuit). According to the EEOC, refusing to hire someone who has done so is retaliation just as much as punishing someone who actually works for you.
Wait a minute though. That’s the EEOC’s position. Is that the law though? Well technically no, but the EEOC is the agency that enforces federal employment discrimination laws and so it acts as a gate-keeper. It’s early, so we don’t know what will happen with this case. (There’s a strong chance that like most cases, this one will end in a settlement.) While courts have not always agreed with the EEOC, if you receive such a charge, you would have to allow the case to go to litigation, pay the attendant legal fees, and keep doing so if you needed to appeal to a higher court. In my experience, most employers don’t want that.
So what can you do? Basically you do what you should be doing and would hopefully be doing anyway:
- Keep your inquiries about candidates job-related;
- While you can look into whether the candidate would fit with your company culture, do not base decisions on whether s/he exercised his/her rights under any employment law. If you do, you’re asking for trouble.
- Make sure your own house is in order. In other words review your own policies and complaint procedures and update them if necessary.
- Monitor your own compliance with anti-discrimination laws.
- Base your hiring decisions on legitimate, non-discriminatory factors.
- Train your managers and hiring staff. Emphasize that an employee’s past exercise of legal rights, including discrimination claims against former employers are not a legitimate basis for refusing to hire him or her.
- Do your best to have an amazing 2019!
Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
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