Don’t consider pending lawsuits when making hiring decisions

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in Discrimination and Harassment,Employment Law,Hiring,Human Resources

Don’t bar former employees who have sued the company from applying and being hired for new jobs. Doing so almost certainly invites a retaliation lawsuit—one that courts are likely to find in favor of the former employee.

Remind hiring managers that they should never discuss past or current litigation, EEOC complaints and the like in conjunction with a job offer or rejected application.

Recent case: Royal Cline worked for 31 years as a government contractor at a U.S. Department of Energy facility until he was laid off during a reduction in force. He sued, alleging age discrimination.

While his lawsuit was pending, he sent his former employer an application in response to a job opening for which he was well qualified. A manager wanted to hire him and Cline began training. Then the manager learned about Cline’s lawsuit against the company and revoked the job offer.

Cline promptly added a retaliation claim to his discrimination lawsuit.

The 6th Circuit Court of Appeals dismissed the age discrimination claim, but sent the retaliation claim to trial. (Cline v. BWXT Y-12, LLC., No. 07-5639, 6th Cir., 2008)

Final note: Want to make sure someone who has sued your company never applies again? The only way to guarantee that is to settle the case and include a “no future applications” clause in the settlement agreement. Otherwise, you risk a retaliation lawsuit. 

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