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Courts Remain Divided on Applicability of Title VII to Retaliation Claims by Former Employees

January 1, 1995

Title VII of the Civil Rights Act of 1964 provides that an employer may not retaliate against any of its "employees" or "applicants for employment" because they have filed a charge under Title VII, or have opposed any practice made an unlawful practice under Title VII. "Employee" is defined as "an individual employed by an employer." Most courts have expansively interpreted this definition, concluding that it includes former employees as well, and have found that acts of discrimination or retaliation by an employer against its former employees are therefore within Title VII's prohibitions. However, some courts, relying on the express language of the statute, which does not refer to "former employee," have concluded that Title VII provides no cause of action against an employer for acts of retaliation committed after the employment relationship has ended.

In the most recent decision on this issue, a federal district judge in Texas sided with the majority of courts, holding Title VII applicable to retaliation claims by former employees. Fields v. Phillips School of Business and Technology, 1994 U.S. Dist. LEXIS 17951 (W.D. Tex. Dec. 14, 1994). Plaintiff Otha Lee Fields was formerly employed as an admissions representative by defendant Phillips School of Business and Technology. Following his termination, he sought employment with the Internal Revenue Service. Claiming that Phillips provided negative job references to the IRS in retaliation for his earlier filing of a charge of discrimination against Phillips with the Equal Employment Opportunity Commission, Fields brought suit under Title VII. Phillips responded that Fields, as a former employee, could not maintain such a claim.

The Fields court rejected Phillips' contention, in agreement with the courts which had previously extended Title VII's applicability to former employees: "the rationale behind these decisions is based primarily upon policy considerations, particularly the broad remedial purpose of the act and that fear of unremediable employment reprisals would chill Title VII claims for discriminatory discharges."

Although several federal appellate courts have yet to rule definitely on this question, the U.S. Court of Appeals for the Second Circuit in New York has long held that the definition of "employee" under Title VII includes former employees. Thus, the Second Circuit reversed a lower court decision that had dismissed a claim that the plaintiff's former employer, by refusing to provide employment reference letters, retaliated against her for filing a sex discrimination claim under Title VII. Pantchenko v. C.B. Dolge Company, Inc., 581 F.2d 1052 (2d Cir. 1978). Although the Court of Appeals for the Ninth Circuit (which includes California) has not explicitly so held, it has suggested in a related context that Title VII actions may well be sustainable by former employees seeking to challenge retaliatory negative employment references. London v. Coopers & Lybrand, 644 F.2d 811, 817 (9th Cir. 1981) (citing Pantchenko and allowing a former employee to sue under a civil rights law other than Title VII for adverse employment references.)

Although courts remain divided on the issue, which has yet to be addressed by the U.S. Supreme Court, the trend clearly indicates that Title VII does provide a cause of action against an employer by a former employee for acts of retaliation committed after the employment relationship has ended. Of course, wholly apart from Title VII, where the former employee can show that a negative employment reference was false, the employer can be subject to liability for defamation under state law. With respect to former employees who previously filed discrimination charges with the EEOC or state or local human rights agencies, employers must exercise particular caution in responding to post-employment inquiries, since Title VII provides such employees with another avenue for relief.