The Massachusetts Supreme Judicial Court recently ruled that the Fair Employment Practices Act, the state’s discrimination and anti-retaliation statute, protects both current and former employees from unlawful retaliation. The Court further held that a former employee may pursue a retaliation claim for conduct that occurred long after the termination of employment. The case, Psy-Ed Corp. v. Klein, 2011 Mass. LEXIS 254 (2011), makes it clear that unlawful retaliation encompasses more than adverse employment actions, such as termination or demotion. While the statute does, indeed, protect against this type of conduct, it also prohibits employers from taking any action against an individual if the conduct is designed to coerce, intimidate, threaten, or interfere with that individual’s protected rights under the Fair Employment Practices Act, whether or not the individual is a current employee.

FACTS OF PSY-ED CORP. V. KLEIN

The employer, Psy-Ed, was a publisher of magazines for families of children with disabilities and special health care needs. Kimberly Shive (“Shive”) was employed as an assistant editor, and later as an associate editor. Shive was deaf and required an interpreter at meetings as a reasonable accommodation. After three years of employment, Shive learned that her position was being eliminated in a corporate restructuring. Shive filed a charge of discrimination with the Massachusetts Commission Against Discrimination (“MCAD”), alleging discrimination based on disability.

In connection with the MCAD charge, a corporate officer and co-founder of the company, Stanley Klein (“Klein”), reluctantly signed an affidavit generally supportive of Psy-Ed’s position. Later, after learning that his position was also being eliminated, Klein signed a second affidavit supporting Shive’s claims of discrimination and recanting his prior testimony. When Psy-Ed’s CEO learned of Klein’s second affidavit, the company filed a lawsuit against Klein, Shive, and another employee who had supported Shive’s claims of discrimination, alleging defamation, unfair and deceptive trade practices, civil conspiracy, and tortious interference with contractual and business relations. In addition, Psy-Ed’s Board of Directors voted to discontinue payments to Klein under a promissory note.

In response, Klein filed a counterclaim against the company and some of its officers, alleging a number of causes of action, and Shive filed a second charge with the MCAD alleging unlawful retaliation under the Fair Employment Practices Act. Klein also filed a separate lawsuit against the company and some of its officers, alleging unlawful retaliation, claiming that the company had retaliated against him because he had supported Shive’s claim by filing a baseless lawsuit against him and discontinuing the payments under the promissory note. The company argued, among other things, that Klein could not sustain a claim for unlawful retaliation because he had not been employed by Psy-Ed for more than two years when the alleged retaliatory conduct occurred.

THE SUPREME JUDICIAL COURT’S DECISION

The Supreme Judicial Court held that an individual does not need to be a current employee to have a claim for unlawful retaliation under the Fair Employment Practices Act. The Court turned to the plain language of the statute, which states that it is unlawful for “any person…to discharge, expel or otherwise discriminate against any person because he has…filed a complaint, testified or assisted in any proceeding…” The Court found that the law prohibits retaliation by “any person” against “any person.” Since the statute does not limit its prohibitions to the employee-employer relationship, the Court found that Klein was not barred from pursuing his claim of retaliation, even though he had not been employed by Psy-Ed for more than two years when the alleged retaliatory conduct occurred.

The Court further held that, while Massachusetts courts often use the words, “adverse employment actions” to describe retaliatory conduct, this phrase does not appear in the statute, and the statute does not limit the types of retaliatory conduct to those that arise during the employment relationship. In addition, while the Court recognized that there is a constitutionally protected right to file a good faith lawsuit against a charging employee, the Court also found that there is no constitutional right to file a baseless or “sham” lawsuit. The Court further held that, if the lawsuit has no merit and appears aimed at “getting back at” the former employee, the lawsuit may very well constitute unlawful retaliation.

TAKEAWAYS FOR EMPLOYERS

Retaliation claims are on the rise. In fact, the EEOC recently reported that retaliation claims are now the most frequently filed charge, surpassing race for the first time ever. Often, even when the underlying discrimination claim is dismissed, plaintiffs are permitted to move forward with a retaliation claim because of conduct that occurred after the initial claim of discrimination.

The Supreme Judicial Court’s ruling in Psy-Ed makes it clear that former employees may now pursue retaliation clams for conduct that occurred well after their last day of employment. Employers cannot defend against retaliation claims by arguing that the conduct occurred after the employment relationship ended. As a result, employers should be even more careful to train managers and officers to ensure that they do not to take any action against a current or former employee who has filed a charge of discrimination. Managers and officers should be reminded to give honest references following termination of employment, not to intimidate or harass a former employee (even when they believe the charge had no merit), and not to summarily refuse to consider an application from a former employee who has filed a charge.