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Anti-Retaliation Protections for Former Employees

Posted November 15th, 2018 by Melinda Koster in Retaliation Law.

Retaliation can rear its ugly head in a variety of contexts, including after employees separate from their employers. Fortunately, several anti-retaliation laws protect former employees who experience post-employment retaliation for complaining about discrimination.

In two critical retaliation cases analyzing the breadth of Title VII’s protections—Robinson v. Shell Oil Company and Burlington Northern & Santa Fe Ry v. White—the Supreme Court made clear that Title VII’s anti-retaliation provision applies with full force to former employees. In Robinson, the Supreme Court ruled that the term “employee,” as used in Section 704(a) (i.e., Title VII’s  anti-retaliation provision), was ambiguous as to whether it covered former employees; the Court reasoned, however, that the broader context of Title VII and the primary purpose of Section 704(a) compelled the conclusion that former employees are protected by the statute. As the Supreme Court stressed, a primary purpose of Title VII’s anti-retaliation provision is “[m]aintaining unfettered access to statutory remedial mechanisms.” Then, in Burlington, the Supreme Court expanded upon its ruling in Robinson and declared that Title VII’s anti-retaliation provision “extends beyond workplace-related or employment-related retaliatory acts and harm.” The Court explained that “one cannot secure the . . . objective [of Title VII’s anti-retaliation provision] by focusing only upon employer actions and harm that concern employment and the workplace. Were all such actions and harms eliminated, the anti-retaliation provision’s objective would not be achieved. An employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace.” The Supreme Court further reasoned that “[a] provision limited to employment-related actions would not deter the many forms that effective retaliation can take.”

Both state and federal courts have recognized an array of negative actions against former employees as constituting unlawful retaliation under various statutes. Here is a rundown of some examples of adverse actions taken by former employees that have been deemed retaliatory by certain courts:

  • Providing a negative reference to prospective employers. In Robinson, discussed above, the former employer gave the plaintiff’s prospective employer a negative job reference after the plaintiff engaged in protected activity by filing an EEOC race discrimination charge. The Supreme Court in Robinson recognized that Title VII’s anti-retaliation provision extended to negative job references by former employers.
  • Falsely advising prospective employers that the former employee brought a lawsuit. In Jute v. Hamilton Sundstrand Corp., for example, the plaintiff’s former supervisor notified a prospective employer that he could not discuss matters relating to the former employee plaintiff, falsely claiming that she “had a lawsuit pending.” The Second Circuit allowed the plaintiff to proceed to trial on her Title VII retaliatory reference claim, explaining that “a reasonable jury . . . could find that [the supervisor’s] false statement negatively affected [the plaintiff’s] chances of securing employment.”
  • Cancelling former employee’s health insurance coverage post-termination. In Roa v. Roa, for example, the New Jersey Supreme Court analyzed the plaintiff’s retaliation claim under the New Jersey Law Against Discrimination and concluded that the company’s post-termination cancellation of its ex-employee’s health insurance coverage could qualify as retaliation under the New Jersey state statute.
  • Contesting the former employee’s unemployment compensation award. In Ward v. Wal-Mart Stores, Inc., for example, the former employer appealed the plaintiff’s award of unemployment benefits less than one month after the plaintiff filed an ADA discrimination charge with the EEOC. Under the relevant state law, unemployment benefits could only be denied to a terminated employee if the discharge was for employee misconduct, and the company had even acknowledged that the plaintiff employee was not terminated for wrongful conduct. The district court concluded that a reasonable jury could find that Wal-Mart’s appeal of the unemployment compensation award was retaliatory under the ADA.
  • Filing a lawsuit against the former employee. Several courts have recognized that the filing of a lawsuit against a former employee who complains of discrimination can qualify as unlawful retaliation. See, e.g., Durham Life Ins. Co. v. Evans, 166 F.3d 139, 158 (3d Cir. 1999) (concluding that evidence supported finding of post-employment retaliatory conduct, where defendant filed lawsuit against former employee for breach of her non-compete following that employee’s resignation due to sex discrimination); Jacques v. DiMarzio, Inc., 216 F. Supp. 2d 139, 144 (E.D.N.Y. 2002) (imposing Rule 11 sanctions and dismissing defendant’s counterclaim against former employee, who had asserted claims under the ADA and state whistleblower law; deeming defendant’s counterclaim to be a “retaliatory in terroremtactic against the plaintiff for bringing her claims to court”); EEOC v. Va. Carolina Veneer Corp., 495 F. Supp. 775, 778 (W.D. Va. 1980) (finding that defendant employer’s defamation action against plaintiff, who filed an EEOC charge against the employer a few months earlier, was “unquestionably retaliatory in nature” under Title VII).

If you believe that you have experienced retaliation after separating from your employer, you may still have recourse to pursue retaliation claims. Sanford Heisler Sharp, LLP has experienced employment discrimination and retaliation lawyers in New York, Washington, DC, Baltimore, San Francisco, San Diego, and Tennessee, who can assess the circumstances of your case.

Melinda Koster is a Senior Litigation Counsel in Sanford Heisler Sharp’s New York Office who represents employees with a wide range of claims, including discrimination on the basis of gender, pregnancy, and age, in both public litigation and privately negotiated settlements.
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