New Employer's Retaliation For Opposing Discrimination By A Former Employer Is Illegal

 One of the biggest worries I hear from clients and potential clients is the fear that filing a lawsuit for discrimination will follow them to a new employer. And it's a legitimate concern. A lawsuit is a public record. It will turn up in a background check. Plus, you'll have to testify and appear at hearings in your case, and your new employer will likely find out about your case. Even if it's not your case, what if you're subpoenaed to testify in a former coworker's case?

So, can a new employer retaliate against you for opposing discrimination by a former employer? The 11th Circuit Court of Appeals says such retaliation is illegal.

There is nothing in the anti-retaliation provision's opposition clause that permits an employer to retaliate against one of its employees for opposing an unlawful employment practice of a former employer. The clause forbids retaliation by "an employer" against "any individual" for having "opposed any practice made an unlawful employment practice by [Title VII]." 42 U.S.C. § 2000e-3(a) (emphasis added). It doesn't say "opposed any practice of a current employer made an unlawful employment practice by [Title VII]." A former employer's unlawful employment practice is just as much an unlawful employment practice as one of a current employer. The statutory text makes no distinction between the two. Opposition is opposition, and any unlawful employment practice is any unlawful employment practice.

And the entity that the statutory provision forbids from retaliating is "an employer," not just the employer whose unlawful employment practice the employee opposed. In this context, as is usually the case, the indefinite article "an" means "any." See Alabama, 778 F.3d at 933. Georgia Pacific is unquestionably "an employer," and at the time it allegedly retaliated by firing Patterson it was her employer.

We hold that under the opposition clause's plain language, a current employer may not retaliate for opposition clause conduct even if it is directed at or involves only a former employer. See McMenemy v. City of Rochester, 241 F.3d 279, 284 (2d Cir. 2001) ("We think that Title VII protects an employee from any employer, present or future, who retaliates against him because of his prior or ongoing opposition to an unlawful employment practice or participation in Title VII proceedings.").

This case only refers to an employer, and not a potential employer. A discrimination lawsuit can turn up in a background check and there could be little way to prove that it was the reason you were denied a position. Still, Title VII makes such discrimination illegal:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labor-­management committee controlling apprenticeship or other training or retraining, including on—the-job training programs, to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

The Fair Credit Reporting Act requires that employers provide you with a copy of any background check that caused them to turn down your employment, so it's wise to ask for a copy of any background check to see if a discrimination lawsuit is mentioned.

Bottom line: employers and potential employers can't legally discriminate against you for opposing discriminaiton by a former employer. It's your burden to prove that was the reason, but if you think this is what happened, talk to an employee-side employment lawyer in your state about your rights.