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‘Blacklisting’ for prior EEOC complaints may be retaliation

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in Employment Law,Hiring,HR Management,Human Resources

Title VII of the federal Civil Rights Act outlaws retaliation against applicants or employees because they have filed EEOC complaints or participated in EEOC proceedings. That obviously means you can’t hold it against an employee for having previously filed an EEOC complaint against your organization. But that prohibition applies equally to EEOC complaints that job applicants may have filed against other employers.

In other words, “blacklisting” an applicant because you know she filed an EEOC complaint against another employer is illegal retaliation.

Recent case: Christine Nilsson applied to work at a police department shortly after settling an EEOC lawsuit against her former employer. The police department offered her a job contingent on her passing a psychological screening test. When she failed, the department withdrew the offer.

Nilsson sued for retaliation, alleging the test was a pretext for not hiring her—that the department learned of the EEOC complaint and wouldn’t hire a litigious cop. The 9th Circuit Court of Appeals ruled she could sue for retaliation, even though the protected EEOC complaint was against another employer.

Fortunately for the police department, the court considered the stated reason for withdrawing the offer—the failed test—and determined Nilsson couldn’t show the test results were a pretext for not hiring her. An independent specialist, who administered the test and recommended against hiring her, never knew about her prior EEOC activity. (Nilsson v. City of Mesa, No. 05-15627, 9th Cir., 2007)

Final note: The employer did everything right in this case. It offered the job contingent on a medical test and had the test performed by an independent expert. It could justify the test as a bona fide business necessity. Plus, it never raised her prior litigation, which it found out about before it made the conditional offer.

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