Think time will make a discrimination case go away? Think again. Even if you think a previous complaint has been resolved or run its course, a former applicant or employee who applies for another job can still sue for discrimination if she is again turned down. She won’t be able to get damages for the earlier discriminatory actions, but she may be able to sneak in the evidence and sway a jury.
Recent case: Conella Menefee lost her job as a UPS driver when she hurt her back, and the company said it couldn’t (or wouldn’t) accommodate her. She asked for a position but was rejected, even though she claimed that injured male drivers were allowed accommodations or promotions to management when injuries kept them from returning to their former jobs.
Later, after too much time had passed for her to pursue a sex or disability discrimination case, Menefee applied for a new open position. When UPS again rejected her, she sued.
Of course, the court heard about Menefee’s earlier complaints while reviewing her new ones. UPS argued that the entire case should be dismissed, claiming that it was simply making the same decision that it had made earlier. It said she applied with the same problems, and was again denied her requested accommodation.
The court ruled in Menefee’s favor. It said each new application and rejection was a new potential discrimination case. The case will go to trial. (Menefee v. United Parcel Service, No. 1:07-CV-202, ND IN, 2008)
Final note: One way to avoid the problem of the returning applicant is to settle the first complaint and include a promise that he or she will never apply again. While that may cost a few dollars up front, it will end the case once and for all. Always discuss the pros and cons of settling nuisance cases with your attorney and insurance representative. If you are worried about negative publicity and that settling may give other employees ideas, you can also insist that the terms of the settlement remain secret.
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