We all know that an employer is not permitted to retaliate against an employee who has filed a claim or complaint of discrimination. We also know that retaliation is far easier to prove than an underlying claim of discrimination, and that even if the underlying claim of discrimination has no merit, retaliation can still be proved.   All that must be shown to make out a claim for retaliation is the employee’s filing of a claim or complaint of discrimination, an “adverse employment action” by the employer, and some causal connection between the two.

Usually a claim for retaliation is 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.

We mention here just two decisions which stress that retaliation can occur after the termination of employment.  The highest state court in Massachusetts ruled that under Massachusetts state law, 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 statute also protects former employees from further adverse actions by the former employer.

Additionally, a federal court of appeals sitting in Cincinnati recently held that 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.   Although the lower court found that the passage of two years was too long for a claim of retaliation, the appeals court reversed and held that “temporal proximity”* between the claim of discrimination and the “adverse action” was not dispositive of “causal connection,” especially in the “failure-to-hire context.”

See our blog entry on temporal proximity, from March 29, 2011.

Takeaway:  don’t retaliate – ever!