Q&A: Can past lawsuits be a factor in hiring decisions?
Q&AHarassment & DiscriminationHiring
Question: We just received an application from a candidate who’s clearly qualified, but we know he sued his last employer for discrimination and we’d rather not hire someone who goes around suing people. Can we get in trouble for rejecting him?
Answer: Yes, if the past lawsuit is your reason for doing so. State laws in California, Oregon, and Washington protect both employees and applicants from discrimination and retaliation, including protection when they have opposed a discriminatory practice by complaining to a government agency or filing a lawsuit.
The Washington State Supreme Court recently considered this issue for the first time. A math teacher sued the school district that fired him, arguing he was fired because of his race. The district and the former teacher eventually settled the lawsuit. Later, the teacher applied for a position with another organization. The individuals making the hiring decision for the organization knew about the teacher’s prior lawsuit against the district and ultimately decided to hire a different candidate who was much less qualified. The teacher then sued the organization, arguing it retaliated against him by choosing not to hire him because of his prior lawsuit. In siding with the teacher, the court decided for the first time that the Washington Law Against Discrimination forbids employers from retaliating not only against employees, but also against applicants who have engaged in protected activity by complaining of workplace discrimination. Therefore, an employer cannot refuse to hire someone because they opposed the discriminatory practices of a prior employer (Zhu v. North Central Education Service District – ESD 171, Wash, Nov. 2017).
You’re free to reject this candidate if you can fully justify your decision with legitimate job-related reasons. But if the past lawsuit influences your decision, then you’re at risk for a retaliation claim.
Tips for Employers: Avoiding Discrimination and Retaliation Claims
Discrimination and retaliation claims are costly, both in terms of money and in terms of employer reputation. Protect yourself before making a decision by fully understanding the employment laws and potential liabilities that apply to your business. If you have questions about a specific hiring decision or an issue related to discrimination or retaliation, please reach out to your employment attorney. Not a member? Contact us to learn about our unlimited employment law advice for a flat monthly fee.