For South Carolina employees who are thinking about bringing a lawsuit against an employer, one issue we have to discuss is the possible impact that such a lawsuit might have on future employment or reputation. This includes possible retaliation for participating in a sexual harassment lawsuit or other employment claims.
Filing an EEOC charge against an employer—the first step in most discrimination, harassment, or retaliation cases—is not publicly available on the internet. Unless the employee or the company takes affirmative steps to make the dispute public, such as through social media or the local media, then most employment disputes remain fairly quiet early on. However, once we file the lawsuit for an employee, then the lawsuit is available for anyone looking for it. So what impact might that have on an employee?
Employees Are Protected Against Retaliation for Participating in a Sexual Harassment Lawsuit
A recent appellate decision out of the Fourth Circuit Court of Appeals (which covers South Carolina) provides a powerful reminder that advocating for your own employment rights can create other issues in future employment. Let’s look more closely at Barbour v. Merrick Garland.
Ms. Barbour applied at the FBI Academy and was successfully making her way through the program. However, she experienced severe and pervasive sexual harassment throughout her training—examples includes a supervisor telling her that she was a distraction to other trainees due to her looks, constant propositions for sex by male trainees, and being told to smile more by her male supervisor, among other egregious issues. Classic sexual harassment and hostile work environment. She reported the harassment to no avail. Her harassers were even the decision makers about whether she would proceed in her training. She was, predictably, let go instead.
She quickly applied with the Drug Enforcement Administration (DEA) by invitation, and she regularly attained the highest scores on academics and fitness. However, she eventually disclosed to the DEA that she was part of a soon-to-be filed class action lawsuit against the FBI based on the sexual harassment that she and many other female trainees had experienced. The DEA obsessively asked Barbour questions about her involvement with the class action lawsuit and the harassment she experienced. Thereafter, the DEA slow-walked her security clearance process, and eventually the DEA refused to move forward with hiring her, claiming it was based on a number of silly and obviously pretextual reasons.
The trial court dismissed Barbour’s lawsuit right after she filed it, ruling that she didn’t have enough evidence to show that the DEA retaliated against her for filing the separate class action lawsuit. However, the Fourth Circuit determined that she had alleged sufficient facts to continue with her lawsuit and move forward. So Barbour will have a chance to conduct discovery, take depositions, and move forward with digging into the facts underlying her claim. But based on what she’s alleged so far, it sounds like a solid claim to me.
Takeaways for South Carolina Employees
This case provides a good example of what a basic retaliation lawsuit looks like, in this case, one based on what’s called “participation” in a legal claim related to Title VII discrimination and harassment. (Reporting sexual harassment internally is also protected as what’s called “opposition” to illegal conduct.) But it also offers South Carolina employees a concrete example of how filing a lawsuit against a former employer can impact your life with future employers.
Even though your new company should not retaliate against you for advocating for your rights against an old employer, it still happens. The new employer may focus more on whether you are a “problematic” employee instead of on the more important issue of the rights of employees to be able work in an environment free of unlawful discrimination and harassment.
I believe it’s still extremely important for South Carolina employees to hold companies accountable for violating employment laws, and I’ve dedicated my career to bringing these cases for that very reason. But being involved in a lawsuit is stressful, exhausting, expensive, and can impact your future employment, as Ms. Barbour learned. It’s not something to jump into lightly.
If you have any questions about harassment or retaliation for participating in a sexual harassment case, please reach out to my office at (864) 233-4351 or on our Contact Us page.
