Retaliation applies to former employees, too

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in Discrimination and Harassment,Employment Law,FMLA Guidelines,Human Resources

Here’s a potential trap you may not have considered: Punishing a former employee may be retaliation, too. That means that you must carefully consider anything you do involving a former employee before you act.

Recent case: Kiki Ikosso-Anastasiou was a tenured professor who went on a one-year paid sabbatical leave. Her university paid professors on sabbatical leave half their regular salaries, plus benefits.

Right before she was scheduled to return for the fall semester, Ikosso-Anastasiou asked for 12 weeks of FMLA leave to care for her sick son. The university approved her request. Then she asked for additional time until the end of the semester as unpaid leave. Again her request was approved. Then she asked for the spring semester off, also as unpaid leave.

This time, the university denied Ikosso-Anastasiou’s request and warned her that if she didn’t return, she would be terminated on the grounds that she had abandoned her position. She protested, claiming this was sex discrimination, and didn’t return.

After her termination, she filed an EEOC complaint. That’s when the college told her that it wanted her sabbatical pay back based on a belief that Ikosso-Anastasiou had actually taken a full-time job while on leave—something her sabbatical agreement specifically prohibited.

Ikosso-Anastasiou then added retaliation to her lawsuit. The university argued that only current employees can allege retaliation, and that the retaliatory act has to occur during employment.

The court disagreed. It said that former employees are protected from retaliation, too. The court sent the case back to trial. Now Ikosso-Anastasiou will have a chance to convince a jury that threatening to make her pay the money back was retaliation for her EEOC complaint. (Ikosso-Anastasiou v. Board of Supervisors, No. 06-31111, 5th Cir., 2009)

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