The answer is yes. (You weren’t expecting that, were you?)
But here’s the thing.
The company must base its decision not to rehire a former employee on a legitimate reason. For example, suppose an employee worked as a bartender, and the company terminated her employment for being late to work often and spilling drinks on customers. That would be enough to terminate the employee and not rehire her if she later reapplied for the same position.
Now, I’ll change the facts a bit.
Suppose that after the employer terminated the employee:
- she filed a Charge of Discrimination with the EEOC,
- the EEOC investigated the charge, and
- the employee participated in that investigation.
The employee’s filing of a Charge of Discrimination with the EEOC and her participation in the EEOC’s investigation are protected activities under Title VII of the Civil Rights Act of 1964. Consequently, an employer cannot retaliate against an individual for “participating” in an EEO process, including refusing to rehire them.
According to the EEOC, “participation in the EEO process is protected whether or not the EEO allegation is based on a reasonable, good faith belief that a violation occurred. This does not mean that falsehoods or bad faith are without consequence. An employer is free to bring these to light in the EEO matter, where it may rightly affect the outcome. But it is unlawful retaliation for an employer to take matters into its own hands and impose consequences for participating in an EEO matter.”
Recently, the EEOC announced that it had filed a lawsuit in which it alleged that in 2023, a former employee reapplied to work for the same company. However, a company vice president informed her that she was not eligible for rehire because she had filed a previous discrimination charge with the EEOC after being fired from a bartending position in 2022. The Vice President cautioned the individual not to apply with the company again.
Yesterday, a company subscribing to this blog asked me to train its managers on compliance issues. The goal isn’t to turn these front-line folks into lawyers — they’re probably not cool enough anyway 😎 — but to give them easy ways to avoid creating legal liability for the company. Telling a former employee that she can’t return to work because she previously claimed discrimination with the EEOC would fall into that category.
The takeaway is something they teach us in Employment Law 101: Managers should not base employment decisions on protected classes and activities.
If you’re interested in getting some training for your workforce—it won’t be boring—perhaps I can help. Give me a holler.