Who is protected from retaliation?
Applicants and employees are generally protected from a wide range of retaliatory acts by an employer, although some laws (e.g., the Americans with Disabilities Act and the Family and Medical Leave Act) extend protection from retaliation to "individuals." However, even when the law refers to "applicants" and "employees," the courts have applied a liberal interpretation.
Are former employees protected? Although Title VII refers to retaliatory acts directed against applicants and employees, the Supreme Court has held that the prohibition on retaliation can include reprisals against former employees. Generally, post-termination retaliation claims are allowed when it is the termination itself that gives rise to the protected act of filing a Title VII action or when retaliation results in termination from a later job, a refusal to hire or other professional or occupational harm. Frequently, this takes the form of negative employment references.
Like Title VII, the Age Discrimination in Employment Act protects "employees or applicants." The Fair Labor Standards Act refers only to employees. Post-employment discrimination claims under these laws are usually analyzed by the courts in the same manner as claims under Title VII.
What if the employee was not the original target? Since anyone can oppose unlawful discrimination and participate in proceedings intended to stop discrimination, Title VII's retaliation prohibition can be invoked by those who were not themselves victims of the original discrimination. For example:
- A white male university professor who was fired after he assisted a female professor in exercising her Title VII rights.
- A father who was allegedly fired because his son filed charges of reverse discrimination against their joint employer.
- A discharged employee whose offer of reinstatement was withdrawn after a coworker protested the discharge on his behalf and threatened that a claim for discriminatory discharge would be filed.
Some courts have limited third-party claims to individuals who have actually participated in protected activities or opposed discriminatory practices in some manner. Other courts, however, will allow third-party claims based on an employer's belief that an employee had assisted another in litigation. Whether or not third-party retaliation claims are viable may also be dependent upon which statute the claim is based.
Reprinted with permission. © CCH
Who is protected from retaliation? Applicants and employees are generally protected from a wide range of retaliatory acts by an employer, although some laws (e.g., the Americans with Disabilities Act and the Family and Medical Leave Act) extend protection from retaliation to "individuals." However, ...