Even a gap of five years between protected conduct and an adverse action isn’t enough to show the two are not connected. In Baines v. Walgreen Co., No. 16-3335 (7th Cir. July 12, 2017), the plaintiff had worked for the employer in 2009 and, back then, had filed several EEOC charges. In 2014, she applied for work again, and her application was rejected. She claimed retaliation, and the employer argued that 5 years was far too long for any connection to exist between filing the charges and the decision not to rehire her. The problem with this argument was that the plaintiff was not relying on close timing to establish a causal connection. Instead, her cousin had taken the job with the employer, and the cousin reported her supervisor’s statement the plaintiff’s application had been blocked by a higher level manager. The manager had been personally involved in the employer’s defense of the old EEOC charges.
The employer will still get to present its reasons for the decision not to hire the plaintiff, but will have to do that in front of a jury. Managers involved with former employees’ protected activity might have conflicts dealing with new applications from the same employee. Consider how to identify those conflicts when they occur in your hiring process.
