Is it Discrimination if My Employer Fires Me but Then Takes it Back?

Employment discrimination refers to any “adverse action” that an employer takes against you based on race, sex, color, or national origin. Oftentimes an adverse action takes the form of firing the employee. What happens if an employer notifies you of its intent to fire you but later rescinds that action? Can you still sue for discrimination based on the attempt to fire you for a discriminatory reason?

Former NYC Synagogue Employee Allegedly Fired Due to Premarital Pregnancy

The U.S. Court of Appeals for the Second Circuit, which oversees all federal employment discrimination cases from New York, recently addressed these questions. The Court reinstated a sex discrimination lawsuit brought by the former program director of a New York City synagogue. According to her complaint, the plaintiff “returned from her honeymoon, visibly pregnant,” which upset the rabbis in charge of the defendant congregation.

A few days later, the defendant notified the plaintiff of her termination, effective after three weeks. The defendant claimed the termination was due to a “restructuring of the Congregation's staff.” The plaintiff believed this was merely a pretext to justify their decision to fire her for becoming pregnant before she was legally married.

The defendant offered the plaintiff severance pay if she waived her right to sue for “pregnancy or gender discrimination” or to bring a similar claim under the Family and Medical Leave Act (FMLA). The plaintiff refused to sign the waiver and instead retained an employment discrimination attorney. In response, the defendant offered to “reinstate” the plaintiff to her position, thereby withdrawing the earlier three-week termination notice.

Ultimately, the plaintiff did not return to work and she did file a lawsuit in federal court. The judge dismissed her complaint, however, holding that since the defendant withdrew its notice of termination, the plaintiff no longer had a viable discrimination or FMLA claim.

But the Second Circuit said that was an incorrect reading of the law. The notice itself was an “adverse action” under federal civil rights law. The U.S. Supreme Court, in fact, has “twice considered” this issue, according to the Second Circuit, and held that “a cause of action for discriminatory termination accrues” on the date “when the employer notifies the employee he is fired, not on the last day of employment.”

Taking the Supreme Court's reasoning a step further, the Second Circuit said the employer's “rescission” of the termination notice in this case does not “eliminate the adverse employment action that has already occurred.” That said, a “good faith” rescission may serve to mitigate potential damages for employment discrimination–especially if the employee refuses to accept such an offer of reinstatement–but the Second Circuit left it to the trial court to assess whether that was the case here.

Have You Been Fired Due to Your Sex or Race?

The Second Circuit's decision is common-sense victory for all New York workers who have faced discrimination in the workplace. If you have received a notice of termination that you believe is motivated by sex or race discrimination, you should take a lesson from the plaintiff in the case above and speak with a New York employment attorney right away. Contact the Law Offices of Mahir S. Nisar in New York City or Long Island if you require immediate legal assistance.

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