Thursday, January 9, 2014

Blackballing as retaliation

Do you remember Diana Wang, the unpaid intern who sued Hearst Corporation, claiming that the publisher violated that Fair Labor Standard Act by not paying her? Two years later, she claims that she cannot find work as a result of her lawsuit.

Let’s break this down. Filing a lawsuit claiming a violation of the Fair Labor Standards Act (or Title VII, or the ADA, or the ADEA…) is protected activity. Refusing to hire someone who engaged in protected activity is illegal retaliation. Ergo, refusing to hire someone who filed a lawsuit claiming a violation of the FLSA (or Title VII…) is illegal retaliation.

So, if Ms. Wang can prove that prospective employers are not hiring her because of her prior lawsuit against a former employer, then she would have a good retaliation claim. Hunches, however, do not equal proof, and, the proof, as they say, is in the pudding. It may be that other applicants are more qualified. Or, it may be that employers are wary of hiring a qualified, but litigious, employee.

Employers don’t like getting sued. Therefore, it makes sense that they want to minimize their risk of getting sued by not hiring employees who show a propensity to sue other employers. Employers need to understand, however, that such a rationale is retaliatory, and could result in the very lawsuit they are trying to protect against—provided, of course, that the applicant can prove the prior lawsuit was the reason (or a motivating factor, depending on the nature of the underlying protected activity) for the failure to hire.

What’s the answer for businesses? Hire blind. Not every lawsuit will be as highly publicized as Ms. Wang’s. If you are going to search applicants’ backgrounds for civil lawsuits, limit the search to lawsuits that relate to the job (lawsuits against the applicant involving issues of dishonesty, for example). If you don’t look for protected activity, you will be able to insulate yourself from a retaliation claim that could result from it. And, if you happen to come across a lawsuit against an ex-employer in an applicant’s past, do the right thing and ignore it. Hire based on ability and qualifications, not litigiousness and fear.