An employee quits her job and sues the company for harassment. A few years later, she asks to be rehired. If the company says no, is that retaliation? Read the facts and decide: Who won?

The facts: A woman working for a manufacturing company filed a lawsuit, claiming sexual harassment. The complaint didn’t make it to court. A few years later, she sent a resume to the same company asking to be considered for “any open position.” The company responded by saying her services weren’t needed at that time. She sued, claiming it was retaliation for her original lawsuit.

The employer said: It wasn’t looking to hire anyone with her experience and skills. The fact that she’d sued the company before had nothing to do with it.

Who won? The employer.

Why: In a sense, the company got by on a technicality. To be considered a “job applicant” for the purpose of a discrimination or retaliation case, a person has to apply for a specific, open position.

If she did that, she may have had a case. Then it would have been up to the company to prove its reasons for turning her down were legit.

Granted, it’s not every day that an employee decides a company she sued is a good place to apply for a job. But still, the case has a twofold lesson for employers. First: there’s the definition of an “applicant” when it comes to discrimination suits – someone has to apply for a particular position that is vacant. Companies can’t be sued for denying someone a job if there was no job available in the first place.

Second, retaliation suits are often easier for employees to win than the initial discrimination or harassment suits. Just because this woman’s original claim lacked merit didn’t mean the company was free from liability for retaliation.

Cite: Velez v. Jannsen Ortho, LLC

Tags: former employee, lawsuit, rehiring, retaliation