NANCY PUFAHL, Complainant
ROBERT NIEBUHR, Respondent
An Administrative Law Judge for the Equal Rights Division of the Department of Industry, labor and Human Relations issued a decision in the above-captioned matter on June 28, 1991. Complainant filed a timely petition for review by the Commission.
Based upon a review of the record in its entirety, the Labor and Industry Review Commission issues the following:
The decision of the Administrative Law Judge (copy attached) is affirmed and shall stand as the FINAL ORDER herein.
Dated and mailed August 16, 1991.
/s/ Kevin C. Potter, Chairman
/s/ Pamela I. Anderson, Commissioner
/s/ Richard T. Kreul, Commissioner
Although affirming the decision of the Administrative Law Judge in this case, the Commission does not agree that the anti-retaliation provisions of the Act apply only to adverse actions taken by an employer, labor organization, licensing agency or person which are "directly" related the an individual's employment. An adverse action may in some circumstances be subject to the anti-retaliation provisions of the Act even though its relationship to an employment opportunity is only indirect. Thus, for example, anti-retaliation provisions cover the giving of bad references to an ex-employe in retaliation for a complaint of discrimination by that employe. See, e.g., O'Brien v. Sky Chefs, 28 FEP 1960 (9th Cir. 1982). Even though this action by the retaliating employer does not affect the employment relationship which had existed between employer and employe, it can tend to impair the employe's opportunities for future employment with other employers. Thus, it bears a relationship to employment in general. Filing a lawsuit in tort against an equal rights complainant seeking damages for defamation or malicious prosecution may also be retaliatory. See, e.g., EEOC v. Virginia-Carolina Veneer Corp., 495 F. Supp. 775, 27 FEP 340 (W.D. Va. 1980), Cooper v. Pic Walsh Freight Co., 27 FEP 344 (E.D. Mo. 1976). Similarly, threatening an equal rights complainant with criminal charges for allegedly making threatening phone calls to the employer could also be subject to anti-retaliation provisions. Atkinson v. Oliver T. Carr Co., 40 FEP 1041 (D.D.C. 1986). Although suing a person for tort damages or threatening criminal prosecution does not directly implicate any employment opportunity, there is an indirect effect upon future employment opportunities. Like giving a poor recommendation, or no recommendation at all, action by a former employer to sue or criminally prosecute a former employer could effectively destroy that former employe's chances of future employment. Atkinson, 40 FEP at 1043.
In this case, the action which the Respondent is alleged to have engaged in because of a retaliatory motive -- contacting the city recreation department to report that Complainant was not a resident of the city on whose softball leagues she was participating -- simply bears no conceivable relationship whatsoever to any employment opportunity, past, present or future. While the motivation for the action arose in an employment-related context, the action itself had no relationship to employment, and it was therefore not prohibited retaliation.
110 / A
Appealed to Circuit Court. Affirmed June 16, 1992.
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