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Time Doesn’t Heal All Wounds
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Business New Haven
11/3/1997
By: Debra A. Drexler
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Most employers are by now aware of federal and state statutes prohibiting discrimination against employees based on race, gender and many other protected classes (BNH, September 8). A recent Supreme Court ruling has now extended this protection to former employees as well.
In Robinson v. Shell Oil, an employee (Robinson) filed a wrongful discharge claim with the Equal Employment Opportunity Commission against his former employer (Shell) alleging that he had been fired because of his race. Robinson later applied for a job with a new employer who contacted Shell to inquire about Robinson's qualifications. During the telephone conversation, Shell allegedly slandered Robinson. Consequently, Robinson did not get the new job.
Robinson then filed a new claim against Shell for retaliating against him in response to his first wrongful discharge claim. Shell moved to have the case dismissed, arguing that the anti-discrimination statutes did not apply since, at the time of the alleged wrongful conduct, Robinson was not an employee but rather a former employee.
Justice Clarence Thomas, writing for a unanimous court, rejected Shell's argument and held that, on the facts of the case, a former employee does fall within the definition of an “employee” and that Shell's wrongful, slanderous remarks to the potential new employer were a violation of the anti-discrimination statutes.
To hold otherwise, Thomas wrote, would be to give “a perverse incentive for employers to fire employees who might bring [discrimination] claims.” It might also deter employees from making discrimination claims as their former employer would then be given carte blanche to slander them to prospective future employers.
This verdict does not mean that all former employees are covered under the anti-discrimination statutes. At least for now, this holding is restricted to the facts of this case.
Another potential application of this holding may include the refusal to give an otherwise favorable reference. That is, an employer who would give a favorable reference if not for the existence of a discrimination lawsuit, may be sued for discrimination if his refusal to give the favorable reference is found to be in retaliation for the suit.
Employers should either make it a policy not to give any references or, if references are given, to be sure that they are not motivated in any way by prohibited discriminatory purpose.
Attorney Richard E. Hayber practices in Meriden at the law firm of Solomon, Krupnikoff & Wyskiel, P.C.
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