Refusing to hire a litigious applicant could be illegal

If you haven’t read the class-action lawsuit that Brian Flores (the fired coach of the Miami Dolphins) filed against the NFL and three of its teams, you should. It reads like a law school employment law exam question. It has allegations of systemic racial discrimination, fraud, bribery and even a smoking gun text message.

This lawsuit will likely bring much-needed change to the NFL’s hiring practices. It will also likely mark the end of Flores’ coaching career, a fact that he readily admits.

Flores has turned himself toxic. Yet any team refusing to hire Flores now because he sued over the NFL’s discriminatory hiring practice would likely be committing unlawful retaliation. But that doesn’t mean teams still won’t steer clear of him.

Lawsuit = protected activity

Filing a lawsuit claiming an employment law violation is protected activity. Refusing to hire someone who engaged in protected activity is unlawful retaliation. Thus, refusing to hire someone because that person filed a lawsuit claiming an employment law violation constitutes unlawful retaliation.

Thus, if someone can prove that a prospective employer is refusing to hire him because of his prior lawsuit against a former employer, then that applicant would have a solid retaliation claim.

Hiring for Attitude D

Hunches, however, do not equal proof. And the proof, as they say, is in the pudding. It may be that other applicants are more qualified (lawful). Or it may be that the employer is wary of hiring a qualified, but litigious, employee (unlawful).

Employers do not like getting sued. Therefore, it makes sense they want to minimize that risk by not hiring employees who show a propensity to sue other employers. Employers need to understand, however, that such a rationale is retaliatory. And that could result in the very lawsuit they are trying to protect against.

What’s the answer for businesses?

Hire blind. Most lawsuits aren’t as highly publicized as Flores’ lawsuit, so you’d never hear about them unless you search.

If you are going to search applicants’ backgrounds for civil lawsuits, limit the search to lawsuits that relate to the job (lawsuits against the applicant involving issues of dishonesty, for example). If you don’t look for protected activity, you will be able to insulate yourself from a retaliation claim that could result from it.

Finally, if you happen to come across a lawsuit against an ex-employer in an applicant’s past, do the right thing and ignore it. Hire based on ability and qualifications, not litigiousness and fear.

Jon Hyman is a partner at Wickens, Herzer & Panza in Cleveland and one of America’s top writers and speakers on employment-law topics. You can read his popular blog at