Tuesday, November 16, 2010

Do you know? Post-employment retaliation

The typical retaliation scenario involves an employer firing an employee who complained about discrimination or engaged in some other protected activity. What happens, however, if the employer retaliates after the end of the employment relationship? Do the anti-retaliation laws reach these allegations of post-employment misconduct? The short answer is yes.

The logical place to start in deciphering this “yes” is with the statues themselves. Ohio’s anti-retaliation provision, O.R.C. 4112.02(I), makes it illegal
for any person to discriminate in any manner against any other person because that person has opposed any unlawful discriminatory practice defined in this section or because that person has made a charge, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under sections 4112.01 to 4112.07 of the Revised Code.
All of the federal anti-discrimination laws (Title VII, the ADEA, the ADA, and GINA) contain similar prohibitions. In Robinson v. Shell Oil Co. (1997), the U.S. Supreme Court concluded that the term “employees” in Title VII’s retaliation provision “includes former employees,” allowing an employee to “bring suit against his former employer for postemployment actions allegedly taken in retaliation.” Because of the similarity in language across the federal and state statutes, it’s safe to assume this result applies across the board.

What does this mean for employers? It means that retaliation does not stop on the last day of employment. It means that employers must treat ex-employees who have engaged in protected activity with the same kid gloves as current employees. And, it means that ex-employees can sue you for post-employment adverse actions such as:
Just one more concept to build into your EEO training for your managers and supervisors.