Post-employment actions by an employer against an ex-employee can be the bases for a discrimination charge. Thus, although an employee may depart after an argument, go work for a competitor or just flat out leave the employer “high and dry” by quitting at the worst possible time, the employer must be careful. If the departing employee has previously filed an administrative charge or complaint, an employer’s decision to seek revenge may trigger a retaliation claim. Employers need to realize that even after the employment relationship is over, a former employee can still bring a charge against an employer who engages in retaliatory acts. The famous Chinese philosopher Confucius once said, “Before you embark on a journey of revenge, dig two graves.”
Claims of retaliation are rising all across the country. The Equal Employment Opportunity Commission (EEOC) has reported that over one-third of all new charges are retaliation claims. Retaliation claims can result in an award of back pay, front pay, mental anguish damages, punitive damages and the payment of attorney’s fees and costs. There are several ways an employer can get into trouble from a retaliation standpoint.
Negative Employment References
It is never a good idea to discuss with anyone the circumstances surrounding an employee’s departure. We frequently advise our clients that no information should be provided to potential employers except the position held, dates of employment and in some cases, the compensation received by a former employee. If the employee has previously filed a complaint or charge of discrimination against the employer, a retaliation claim may be asserted based on a negative job reference. An employee may also claim that the employer’s comments constitute defamation. The best practice is to adopt a policy providing “neutral” information whenever a reference is requested and stick to that policy.
Failure to Rehire
A failure to rehire an employee can also support a retaliation claim. If the employee has previously filed a complaint or charge of discrimination, a retaliation claim can be created by simply applying for another position and being denied that opportunity. The EEOC has taken the position that “no rehire” clauses in settlement agreements can be considered retaliatory conduct even though the courts have not embraced that view. Rehiring decisions should be based on the employee’s qualifications and such decisions should be fully documented especially in cases where retaliation may be an issue concerning a particular applicant.
Opposing Unemployment Compensation Claims
Generally, an employee is not entitled to receive unemployment benefits if he or she voluntarily resigns from the job without good cause or if the employee is terminated for misconduct. If the employer truly believes the employee did not have good cause to quit, or was fired for misconduct, it should present its case. However, the employer should not oppose an otherwise legitimate claim for benefits in order to “get even” or harass a former employee. If an employer’s opposition to an unemployment claim is meritless or contains false statements, the employee may have a basis to pursue a retaliation claim. Several courts have reached this conclusion by relying on the U.S. Supreme Court’s decision in Burlington Northern & Santa Fe Ry. v. White, where the court noted that conduct is retaliatory whenever it dissuades a worker “from making or supporting a charge of discrimination.”
There are some “tactical” reasons why an employer may not want to oppose a claim for unemployment benefits. Plaintiff’s attorneys often rely upon unemployment hearings to obtain evidence that may be helpful to filing an administrative complaint or lawsuit against the employer. An unemployment hearing may provide the attorney an opportunity to cross examine the company’s witnesses and obtain statements that could be harmful or damaging down the road.
Employers need to be aware that Title VII and other discrimination laws protect not only current employees but also former employees from retaliation. Employers need to consider the consequences of their actions. Even if the retaliation claim lacks merit, it can still have a costly outcome for an employer who has to incur fees and costs to defend the claim. Avoiding thoughts of revenge when an employee departs is the better approach.