I'm not getting hired because I filed a lawsuit against my previous employer; is this retaliation?

Question: I was fired from my last job after I complained about a hostile work environment. Some of the men in my department routinely made sexist comments and told dirty jokes; they also looked at pornography at work. After I complained to our manager about it, he started downgrading my performance and leaving me out of client meetings. I was fired just a few months later, even though my performance had been rated excellent before I complained. After I talked to a lawyer about what happened, I decided to file a lawsuit for retaliation and harassment. That case is pending now, but I'm afraid that it's preventing me from finding a new job. I typically get pretty far along in the interview process, then suddenly I don't hear anything more. Is it legal for a company not to hire me because I filed a lawsuit against my last employer?

Answer: Suing a former employer can put job applicants in a tough spot. You already got unlucky once, by working for a company that allowed sexual harassment to flourish, and then decided to punish the messenger rather than tackle the underlying problem. If prospective employers find out about the lawsuit, they may worry that you are litigious and will only cause problems if they hire you, thus extending your unlucky streak.

The Equal Employment Opportunity Commission (EEOC), the federal agency that interprets and enforces the laws prohibiting harassment and discrimination on the job, has said that refusing to hire an applicant because he or she has sued a former employer is a form of illegal retaliation. The purpose of laws prohibiting retaliation is to ensure that employees feel comfortable coming forward to complain about illegal activity. If employers were free to fire employees who come forward, employees would quickly learn to keep their mouths shut.

The same is true of prospective employers who refuse to hire someone because of a lawsuit against a prior employer. Allowing employers to close ranks against an employee who complains would certainly have a chilling effect on employee complaints.

The bottom line is that, if the employers to whom you have applied are turning you down because of your lawsuit, that is illegal retaliation.

So what can you do about it? You could always consider legal action against the potential employers who haven't offered you a job. However, your lawyer will likely advise you not to go forward. It is notoriously difficult to win a lawsuit for failure to hire, for the simple reason that you aren't privy to the prospective employer's decision making process. You would have to prove that the company was going to hire you, then learned of your lawsuit, then decided, on that basis, not to hire you after all. Without some concrete evidence (like interview questions about your lawsuit or other indications that the prospective employer knew you had sued), your case will be tough to prove.

More to the point, you are probably more interested in getting a job than racking up more legal claims. So what can you do? First of all, find out what prospective employers might be seeing if they look for you online (surveys show that most do). Is your lawsuit mentioned? Has your prior employer posted anything about you? It's probably also worth finding out if your prior employer is dinging you with poor references. If so, you might be able to add a defamation claim to your existing lawsuit, which will hopefully stop that practice in its tracks.

Second, consider what to say about the lawsuit to prospective employers, if appropriate. This can be a very tricky issue to navigate. Also, you might be shooting yourself in the foot if the potential employer wouldn't have found out about the lawsuit otherwise. But, if you are fairly certain that your lawsuit is standing between you and a new job, it might be worth coming up with a brief statement you can use if you get deep into the interview process, with the goal of emphasizing that you are not litigious but had to make a difficult choice to assert your rights in this case. Your lawyer can help you figure out whether this makes sense, and what you could say that might improve your chances without putting you at risk of defaming your former employer.

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