Employers Liable for Retaliation Against Former Employees

It’s always been clear that taking negative action against an employee because he/she filed a discrmination complaint or supported another employee who did so is illegal under Massachusetts law. Now, the state’s highest court has made clear that employees are protected from retaliation even when the supposed misconduct occurs years after employment ends.

The May 2011 decsion by the Massachusetts Supreme Judicial Court (SJC) may take even seasoned employment lawyers by surprise. Indeed, few employee  complaints  even relate to post-employment conduct, and analyses of potential cases has consequently focused on events that occurred while a worker was employed. That approach, however, is suddently outdated by strong SJC language: “a person need not be an employee to enjoy” the protection of the anti-retaliation provisions of Massachusetts’ primary anti-discrimination statute, Mass. Gen. L. ch. 151B.

How the SJC decision will affect case volume or employer exposure to lawsuits is an open question. While employees and their attorneys will certainly broaden their perspectives and look for illegal conduct in places they may previously have ignored, employers should still be able to avoid trouble in this area by following the same rules they should have followed before the decision issued. By making clear to all employees that both discrimination and retaliation will not be tolerated and by abiding a common-sense approach to situations that do arise — addressing any discrimination complaint thoroughly and never taking a negative job action against a worker involved in a discrimination complaint without first consulting with an employment attorney — any increase in liability exposure should be avoidable.

In the May 2011 case, retaliation was alleged by a former worker who supported the discrimination complaint of a fellow employee. He alleged that a buy-out agreement he’d entered with the employer was improperly terminated nearly two years after his employment ended because of his involvement in the discrimination case. A trial court judge dismissed the retaliation complaint after concluding that post-employment retaliation was not prohibitied by Mass. Gen. L. ch. 151B. In its reversal of that decision, the SJC found that the law contains no such limitation on retaliation suits.