Can Retaliation Include a Failure to Rehire?

Retaliation
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Retaliation can include any adverse employment action done to punish someone after he or she seeks the protection of an antidiscrimination law. In a recent case, a jury in a Pennsylvania federal court held that Rudolph Karlo, a former employee who was laid off, was not rehired by his former employer because he refused to withdraw his pending complaint with the federal Equal Employment Opportunity Commission (EEOC).

In January, a jury in the U.S. district court in Pittsburgh found for Karlo on both his age discrimination and retaliation claims against Pittsburgh Glass Works (PGW), according to the Pittsburgh Post-Gazette. The jury awarded Karlo $922,060 ($362,052 in back pay and $560,008 in front pay) plus attorneys’ fees.

The jury decided that PGW willfully violated the federal Age Discrimination in Employment Act in 2010 when it laid off Karlo. He worked as an engineering specialist and production line supervisor for PGW and its corporate predecessor, PPG Industries, for more than three decades. The plaintiff was one of about a hundred employees laid off in 2009 as part of a company-wide reduction in the workforce after PGW took over.

Karlo and six others in their fifties at the time filed a complaint with the EEOC and later a federal lawsuit claiming age discrimination. They were told their positions were eliminated after the plaintiffs saw jobs in production facilities being filled with “younger, less experienced workers, who were provided with minimal training… The more seasoned employees found themselves being marginalized.”

Later in 2009, Karlo was rehired by PGW through a subcontractor. Karlo’s retaliation claim stemmed from the allegation that a PGW supervisor told him he could be rehired into a full-time position if he would “make the whole thing go away,” a veiled reference to his pending age discrimination claims. Karlo refused to withdraw his claims and was fired several weeks later.

PGW’s defense was that Karlo’s work was temporary in nature and that he kept his job for six months after the EEOC filing, according to The Legal Intelligencer. PGW stated it considered him for a job but didn’t hire him due to a lack of experience. The company also claimed the person who decided to end his employment the second time didn’t know about the EEOC complaint.

Karlo joined PPG in 1978 and was promoted a number of times before 2001, when he became a senior engineering specialist, the job he held when the business became PGW. According to court filings, Karlo helped his employer develop eight patents.

The case was dismissed in 2015, but that dismissal was appealed and overturned by the U.S. Court of Appeals for the Third Circuit. The facts and procedural history of the case were spelled out in this 2014 court order concerning the case’s class action status.

Federal Anti-Retaliation Laws

timing

An employer may not legally fire, demote, harass, or otherwise “retaliate” against an individual (including deciding not to rehire the person) because the person filed a complaint of discrimination, participated in a discrimination proceeding, or opposed discrimination in some known way. The laws that prohibit employment discrimination due to a person’s race, color, sex, religion, national origin, age, and disability also prohibit retaliation against those who exercise their rights under those laws.

These retaliation provisions are key to the underlying legal protections. If there were no anti-retaliation laws, employers could “make an example” of someone complaining of discrimination or filing legal claims by firing or harassing the person. The word would soon spread that the cost of standing up for your right not to suffer illegal discrimination would be very high, and perhaps not worth the effort.

There are two key elements to a retaliation claim: knowledge and timing.

  • The plaintiff must show knowledge by the person taking the adverse employment action. Without that knowledge, a defendant (as in this case) could argue that there would be nothing to retaliate against.
  • If there is a close time frame between the protected acts and the negative action by the employer, the evidence would be stronger for a retaliation claim. PGW argued there was no retaliation because Karlo kept his job for six months after it became aware of the EEOC complaint. But closeness in time is not a requirement because the manager at issue could be waiting for the right time to make the retaliation most effective (such as during a group layoff or an annual performance review).

Like all discrimination claims, any number of facts could be relevant to a case, such as the following:

  • verbal or written statements by those in a position of power,
  • comparative evidence that similarly situated employees who had not complained of discrimination were treated the same or better, and
  • evidence showing the given nondiscriminatory reason for the action is false.

retal

Why Retaliation Happens

The process of retaliation begins with the protected action (cooperating in a discrimination investigation or filing a complaint of harassment) becoming known. If the person accused of wrongdoing believes that he or she has done nothing wrong or that his or her action was justified, the person may want to retaliate because he or she believes that he or she has been wronged, according to the EEOC.

A person may be more likely to retaliate against another in the following circumstances:

  • the accusation is very serious,
  • the accusation may negatively affect relationships with others,
  • the accused feels that he or she is being unfairly judged by others,
  • the accusation may put his or her job in jeopardy, and/or
  • the accusation may harm the person’s chances of future upward mobility or obtaining a job elsewhere.

How the employer is structured and its attitude toward employees can encourage or discourage retaliation. Factors that may encourage retaliation include the following:

  • a rigid bureaucracy;
  • a work environment of aggression and bullying;
  • weak, nonexistent, or unenforced policies discouraging retaliation;
  • an authoritarian, top-down management style;
  • high levels of conflict;
  • an environment that uses competition to reward employees; and
  • the ability of the accused to isolate the accuser.

Management, implicitly or explicitly behind closed doors, may retaliate to get the person out of the organization to punish the employee, prevent ongoing conflict in the workplace, and avoid more legal claims. Managers may also want to send the unwritten message that those who complain won’t be tolerated.

Summing It Up

Retaliation for filing a discrimination complaint, cooperating in an investigation, or generally opposing discrimination is illegal.

  • The plaintiff has the burden of proof that this protected action resulted in some form of adverse action by the employer.
  • Normally, key issues to be proved are the employer’s knowledge of the protected action and evidence of a connection between the knowledge and the retaliation (often shown by a short time frame between knowledge and the adverse act).
  • Employers’ management style, their regard for employees (or lack thereof), and their tolerance of bullying behavior by managers can make retaliation more or less likely.

If you work in the District of Columbia, Virginia, or Maryland and believe your employer has retaliated against you, contact our office with any questions about retaliation law, about your situation, and about how the law may be applied in your case.