From time to time I will hear about retaliation experienced by job applicants. This can generally happen in one of two ways.

First, a job applicant may be subjected to illegal retaliation by the applicant’s prior employer, who informs the prospective employer of the applicant’s prior protected activity in an effort to prevent the applicant from getting a job. See, e.g., Dunlop v. Carriage Carpet Co., 548 F.2d 139 (6th Cir. 1977). Fortunately, the job applicant has a cause of action against his/her former employer in this situation. In Dunlop, the 6th Circuit held that “a former employee, voluntarily separated from his employer, is protected from discrimination by his former employer under sec. 15(a)(3) of the Fair Labor Standards Act of 1938.”

Second, a job applicant may be subjected to illegal retaliation by a prospective employer because of the applicant’s prior protected activity. See, e.g., Hayes v. Computer Sciences Corp., 2003 WL 113457 (Tenn. Ct. App. Jan 14, 2003). In Hayes, the employee stated a claim of common law retaliatory discharge under Tennessee law where the employee alleged that he was terminated by his current employer for filing workers’ compensation claims againsy his previous employer. Also, in Christopher v. Stouder Memorial Hosp., 936 F.2d 870 (6th Cir. 1991), the 6th Circuit held that the plaintiff could state a retaliation claim under Title VII against a hospital who denied the plaintiff hospital privileges because of the plaintiff’s previous protected activity.