LEGAL BRIEFS: Adverse Actions May Occur After the Employment Relationship Ends
When police officers are investigating a crime, they look to determine motive and opporutnity. Well, with post-employment retaliation the motive is clear—retaliation—it’s just the opportunity part that may take some working out or that may simply require some patience.
One common means of engaging in post-employment retaliation is for an employer to use the power of employment verification against a former employee. When a person is seeking new employment, they have to list their most recent employers on an application and on their resume. Once a potential employer calls a previous employer to verify the applicant’s information, some employers will use this opportunity to convey intentionally negative and malicious information in order to prevent an employee from getting another job. This is especially true in cases where employees may have complained of potentially illegal misconduct in the workplace.
In the decision for Robinson v. Shell Oil Company, the Supreme Court unanimously held that Title VII of the Civil Rights Act of 1964 prohibits respondents 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, such as discrimination, retaliation, harassment, etc.
The plaintiff in Robinson alleged that his former employer gave him a negative job reference in retaliation for his having filed an EEOC charge against the company. Some courts previously had held that former employees could not challenge retaliation that occurred after their employment had ended because Title VII prohibits retaliation against "any employee." Therefore, if you’ve left employment, you are no longer considered under the definition of an employee.
However, the Supreme Court stated that coverage of post-employment retaliation is more consistent with the broader context of the statute and with the statutory purpose of maintaining unfettered access to the statute's remedial mechanisms. 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.
Therefore, post-employment retaliation (adverse actions, etc.) can still be argued against a former employer that is reaching out to continue to harass and retaliate against a former employee. If your employer has continued to make trouble for you, after you’ve left the company, you may have additional legal arguments to make and there may be additional liability issues for your former employer.