We hope that everyone is aware by now that retaliation claims are increasing very rapidly since an employer who has an underlying charge or claim lodged against it has a very thin tightrope to walk to avoid a current employee from also charging retaliation. See our short “refresher course” on retaliation law posted on April 10, 2013.
But what about former employees? Are they entitled to claim retaliation?
As we noted on January 30, 2013, a claim for retaliation is usually made by a current employee, since it seems obvious that an employer does not have the ability to retaliate against someone who is no longer an employee. Not so: retaliation can occur after the termination of employment. We commented on May 23, 2011 that courts have held that even though an “adverse employment action,” by its very wording, seems to apply only to a current employee, nonetheless in light of the broad purpose of the anti-discrimination laws, which are to be “liberally construed,” it is not limited to current employees. The anti-discrimination laws also protect former employees from further adverse actions by the former employer. (This is contray to UK law where the courts have held that post-employment adverse acts of the employer are not retaliation).
For example, retaliation may be found in a case where an employer refused to re-hire a former employee who had two years earlier resigned after claiming sexual harassment.
We have learned that the EEOC has settled a lawsuit where a national Catholic health care system in Michigan had a policy of denying or delaying severance payments to employees and former employees who signed severance agreements and then filed discrimination charges with the EEOC.
An EEOC attorney stated that “We hope that all employers and employees will now understand that even if employees sign severance agreements with their employer, they are still entitled to file a discrimination charge with the EEOC.”
Here’s an interesting question: if an employer terminates an employee and offers a severance package, and the employee refuses the deal (and does not sign a severance agreeement and release) and then charges that the termination was discriminatory, can the employer withdraw the severance offer without being liable for retaliation?