Working: Ex-employees still linked to employers | L.M. Sixel: Working | Chron.com - Houston Chronicle

The goodbye cake may be a distant memory. Maybe no one even remembers the former colleague’s name. But it turns out that doesn’t matter much because — much to the surprise of some employers — an employment relationship can linger for years.

Just ask Radio One of Texas.

The company, which owns KBXX-FM (97.9) The Box, found itself defending against the allegation that it retaliated against its former sales manager by refusing to sell her advertising time after she launched her own advertising agency.

A jury awarded $766,617 in damages to Corina Allen last week after it determined that Radio One’s decision not to do business with its former employee was motivated by an earlier charge she filed with the Equal Employment Opportunity Commission alleging gender discrimination.

While the award will likely be reduced because of a $300,000 cap on punitive and mental anguish damages, the case is a reminder that a company can be liable for any adverse action it takes against employees — including former employees — who use their protected rights to file or participate in a discrimination grievance.

Allen, who was terminated by the radio station in 2007 and subsequently filed the complaint with the EEOC, launched her own advertising agency in 2009. Her clients wanted to advertise on KBXX, which courts African-American listeners.

Initially, Allen said in an interview, her former subordinates were thrilled to sell her advertising time. But then, she said, her former boss told her that the station wouldn’t sell her ads because of her EEOC complaint.

“I felt punished,” said Allen, who taped the phone conversation with her old boss and used it as evidence in the case.

In the end the EEOC didn’t issue a finding of discrimination but gave Allen what’s called a “right-to-sue” letter, which the law requires of employees in most federal discrimination cases.

U.S. District Judge Ewing Werlein Jr. dismissed Allen’s underlying gender discrimination claims but let the retaliation case go forward.

Dennis Duffy, an employment lawyer with Baker Botts who represents Radio One, declined to comment because the matter is still pending before the court.

Eventually Allen came up with a workaround, using an agency in Austin when she wanted to make an ad buy at KBXX, said her lawyer, Andrew S. Golub of Dow Golub Remels & Beverly. But that reduced her sales commission and eliminated her ability to negotiate a better deal with the radio station, said Golub, who made the same point in pressing his client’s case in court.

She was using the other agency as recently as last week, Golub said.

He built his argument in part on a 1997 U.S. Supreme Court decision in which a former employee of Shell Oil Co. who had filed a race discrimination complaint with the EEOC alleged the company had given him a bad reference to a potential employer. In a unanimous verdict, the court ruled that anti-retaliation provisions extend beyond an employee’s last day on the job.

That means, for example, that employers can’t bar some ex-workers from participating in events to which they invite other former employees, Golub said.

“It’s one of the hidden minefields out there for employers,” said Ted Meyer, an employment lawyer with Meyer White in Houston who was not involved in the Radio One case.

Meyer said he counsels his management clients not to use former employees’ discrimination complaints as a reason to interfere with their business if they attend industry conferences or come back as vendors.

Stefanie Moll, an employment lawyer with Morgan, Lewis & Bockius in Houston, said she recommends that her management clients treat former employees who filed complaints the same as anyone else.

It used to be that employers in Texas and several other states didn’t have to worry as much about retaliation because federal judges with jurisdiction in those states interpreted federal law as typically requiring a pocketbook consequence such as demotion or termination, said Moll, who is not involved in the Radio One case.

But another U.S. Supreme Court case in 2006 involving the Burlington Northern & Santa Fe Railway Co. changed that by expanding the definition beyond the economic consequences.

The broader definition still doesn’t include petty slights or annoyances as retaliation, but it does encompass behavior that might discourage reasonable employees from making or supporting discrimination complaints, Moll said.

So if a former employee asks for a reference, employers shouldn’t use the opportunity — tempting though it may be — to discuss that unpleasant discrimination matter. Words about the job candidate like “troublemaker” or “rabble-rouser” can come back to haunt you.

As to current employees, Moll said, a shift change, transfer to a less desirable job or even a different supervisor eventually might be used as evidence of retaliation.