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Let's say you're an employer. You fire an employee (we'll call him Bob) who later sues you for discrimination. After Bob's termination, you receive a reference call from a gentleman who has just interviewed your former employee. You mention casually that Bob brought a lawsuit against your company for discrimination. Ultimately, the prospective employer does not make Bob an offer. Can Bob sue your company for what you said? Maybe.
Although it might seem counterintuitive, a former employee can bring a lawsuit against a former employer for discriminatory conduct that took place after the employee was fired, so long as the conduct was related to his or her employment. In Veprinsky v. Fluor Daniel, the United States Court of Appeals for the Seventh Circuit held that retaliatory acts that occur after termination and either connect to employment or encroach on future employment are actionable under anti-retaliation provisions of Title VII of the Civil Rights Act of 1964.
The plaintiff in the Veprinsky case had filed a charge with the Equal Employment Opportunity Commission (EEOC) claiming that the defendant had fired him on the basis of national origin and religion. After the EEOC issued Veprinsky a right-to-sue letter, the plaintiff brought suit in the district court. Veprinsky ultimately abandoned his claim of religious discrimination, and the court found in favor of the defendant on the remaining claim. However, Veprinsky also claimed that his former employer had allegedly disclosed false information to his subsequent employer, refused to consider rehiring him for another position and informed the placement firm with which he was working that he had filed an EEOC charge. On those claims, the court held that if a former employee is complaining of retaliation that has a connection to employment or that affected his or her future employment prospects, the former employee has a right to sue. The idea behind this ruling is to assure that discharged employees remain protected from retaliation when they assert their legal rights, particularly when it is the termination itself that is challenged.
Since Veprinsky was decided in 1996, courts in the Seventh Circuit and the Northern District of Illinois have allowed former employees to maintain actions for retaliation against their former employers in several notable instances:
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Where the former employee was denied promised consulting work from his former employer, Flannery v. Recording Industry Ass'n of America, 354 F.3d 632 (7th Cir. 2004)
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Where the former employer sued the former employee in state court for fraud, breach of oral contract and conversation six months after the employee had filed a charge of discrimination with the EEOC, Ishkhanian v. Forrester Clinic S.C., 2003 WL 21479072 (N.D. Ill. June 25, 2003)
- Where a former employer contacted the employee's subsequent employer and disclosed matters that were to be kept confidential under a settlement agreement, which resulted in the employee's termination from the subsequent job, Ruedlinger v. Jarrett, 106 F.3d 212 (7th Cir. 1997)
As an employer, how do you reduce the likelihood that your post-termination actions will lead to retaliation claims? Given the obvious risks, it is wise to consult an attorney who is skilled in labor and employment matters and can steer you down the right path. If you have questions or would like to discuss your particular circumstances, contact your attorney.
© 2012 Much Shelist, P.C.
