Retaliation for Bringing Discrimination Claims Also Applies to Former Employees
A prospective employer for one of your former employees calls you for a reference. Is it ok to tell the prospective employer that your former employee sued you for discrimination?
Case law and current administrative guidelines suggests that disclosing that information under these circumstances could be a form of unlawful retaliation under Title VII of the Civil Rights Act, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), the Equal Pay Act (EPA), Family Medical Leave Act (FMLA), or other federal laws with similarly-worded anti-retaliation provisions.
These laws prohibit retaliation by an employer because an individual has engaged in “protected activity.” “Protected activity” includes filing a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under the applicable statute.
In Robinson v. Shell Oil Company, the U.S. Supreme Court unanimously held that Title VII prohibits employers from retaliating against former employees as well as current employees for participating in any proceeding under Title VII or opposing any practice made unlawful by that Act. The plaintiff in Robinson alleged that his former employer gave him a negative job reference in retaliation for his having filed an Equal Employment Opportunity Commission (EEOC) charge against it. Some courts previously had held that former employees could not challenge retaliation that occurred after their employment had ended because Title VII, the ADEA, the EPA, etc. prohibit retaliation against “any employee.” However, the Supreme Court stated that coverage of post-employment retaliation is more consistent with the intent of the anti-retaliation measures contained in the statute (i.e., to prevent a “chilling effect” on the willingness of individuals to speak out against employment discrimination or to participate in the EEOC's administrative process or other employment discrimination proceedings.) The Court's holding applies to each of the statutes enforced by the EEOC because of the similar language and common purpose of the anti-retaliation provisions.
Moreover, the EEOC, in its Compliance Manual, cites numerous examples of unlawful post-employment retaliation including “informing an individual's prospective employer about the individual's protected activity.” While the fact that an employee has filed a claim or commenced an action under one of these laws is public information, having a practice of informing prospective employers of these facts would likely be considered unlawful by the EEOC.
If you have any questions regarding the foregoing, please feel free to contact us.
Excerpted from the August 2011 edition of "Employment Law Matters". To see the entire newsletter, please click here.