Many New York workers never come forward with employment discrimination claims because they fear retaliation. This is why federal law expressly prohibits an employer from taking any “adverse action” against an employee who engages in a “protected activity.” Such activities include filing a discrimination lawsuit, or even serving as a witness in one.
What about adverse actions that may occur after an employee is fired? In a 1997 case, the U.S. Second Circuit Court of Appeals held that a plaintiff could “state a claim for retaliation, even though they are no longer employed by the defendant company, if, for example, the company 'blacklists' the former employee.” The Second Circuit's decisions are considered binding precedent on all federal courts in New York State.
Company's Post-Firing Lawsuit Against Ex-Employee May be Retaliation
Sometimes judges overlook precedent and need to be reminded. That is what happened in an ongoing federal discrimination and retaliation lawsuit in Brooklyn. The plaintiff in this lawsuit previously worked for the defendant, a bank. She was fired, according to her, because of gender discrimination.
Of note here, the plaintiff alleged retaliation. Specifically, she said she suffered a number of “adverse actions” followed her decision to file a sexual harassment complaint with New York State prior to her termination. In August of this year, the judge presiding over the case rejected a number of these retaliation claims. Specifically, the judge ruled that the defendant did not engage in illegal retaliation when it conducted a search of the plaintiff's work emails and filed its own lawsuit against her for purported “theft of corporate knowledge” connected with her former employment.
After reviewing applicable Second Circuit precedent, the judge reconsidered and modified his opinion in a superseding September 25 order. With respect to the search of emails, the judge said there were questions as to the “motives” for the search. The defendant argued such searches were “routine” for departing employees, but the judge noted that the “Plaintiff had not given any notice that she was leaving,” and was in fact involuntarily terminated. Furthermore, the emails were reviewed by a senior company official, which was not standard procedure. From this, the judge said a jury might infer the defendant's search was retaliation, as it was intended to discourage her from filing a discrimination lawsuit.
More notably, the judge also said the company's decision to sue the plaintiff post-firing could also be construed as retaliation. Here, the judge cited an email from the defendant's CEO, which said he wanted to be “very, very aggressive” in dealing with the plaintiff after her termination. Although the company claimed its lawsuit was designed to protect its confidential business information the judge said, “One reasonable interpretation is that [the CEO] wanted to aggressively pursue litigation against the Plaintiff in retaliation for her complaints of discrimination.”
Do Not Accept Workplace Discrimination or Retaliation
Remember, employment discrimination is illegal in New York. You should never feel pressured into dropping a legitimate discrimination claim against a current or former employer. If you have been the victim of discrimination or retaliation and need assistance from an experienced New York employment law attorney, call the Law Offices of Mahir S. Nisar today.