Post-Employment Retaliation; “Blacklisting”

Retaliation, in the employment discrimination context, has a very specific meaning – namely, subjecting an employee to one or more “adverse employment actions” because the employee engaged in “protected activity.” Frequently, retaliation occurs during the course of employment. But what about retaliation after the employee has left the employer?

Courts recognize that “Title VII prohibits discrimination against both current and former employees” and that “post-employment retaliation [includes] actions that are designed to interfere with the individual’s prospects for employment.” Aslin v. University of Rochester, 2019 WL 4112130 (W.D.N.Y. Aug. 28, 2019) (citing Robinson v. Shell Oil Co., 519 U.S. 337 (1997), Jute v. Hamilton Sundstrand Corp., 420 F.3d 166 (2d Cir. 2005)).

One court indicated that a plaintiff may state a claim for retaliation even if she is no longer employed by the defendant company “if, for example, the company ‘blacklists’ the former employee.” Rivas v. New York State Lottery, 745 Fed.Appx. 192 (C.A.2 (N.Y.), 2018) (Summary Order).

Other circumstances that might – but will not necessarily – give rise to such a claim include where a former employer “wrongfully refuses to write a recommendation to prospective employers” or “sullies the plaintiff’s reputation.” Wanamaker v. Columbian Rope Co., 108 F.3d 462 (2d Cir. 1997).

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