Failure to Rehire As Retaliation
by Michael Fox
An employer who is sued by an employee is usually less than happy about seeing that same employee file for re-employment. It does seem asking a lot of human nature to assume that following a course of litigation all feelings can be put aside and "let bygones be bygones." On the other hand, filing a lawsuit is often clearly within the statutory definition of protected activity.
The real world answer is that most employees who have had to go to the trouble of suing a former employer are often not that interested in returning either. But it does happen, although as the 1st Circuit noted in Velez v. Jannsen Ortho, LLC (1st Cir. 11/3/06) [pdf], "claims of retaliation in the failure-to-hire context are sufficiently rare that this question is one of first impression for this court."
In Velez, the lower court granted summary judgment on two grounds. First it found bringing the first law suit unreasonable so it lost its protected status; or alternatively, it it was protected, the plaintiff had failed to show a causal connection between filing the first lawsuit and not being rehired. The 1st Circuit affirmed, but on more narrow grounds.
It did not address the reasonableness of the first lawsuit, and found the trial court's reliance on causation "awkward at best." Instead it focused on the generalized nature of her "application." The plaintiff had merely written letters expressing a desire for any position that HR considered her suited for.
The 1st Circuit demanded more setting up the prima facie test in a retaliatory failure to hire case as
- she applied for a particular position,
- which was vacant,
- for which she was qualified, and
- that she was not hired for that position.
It explained its rationale:
This specificity requirement is sensible and fair. An open-ended request for employment should not put a burden on an employer to review an applicant's generally stated credentials any time a position becomes available, at the risk of a Title VII claim.
Makes sense to me.