Here are the facts – an applicant applies for a job
and is given a conditional offer of employment. Subsequently, the
employer discovers that the applicant has filed a wage and hour
suit against her prior employer and withdraws the job offer. Is
this retaliation?
According to the U.S. Fourth Circuit Court of Appeals, the
answer is "no." In a split decision (2-1) the appellate
panel concluded that an applicant is not an employee for purposes
of the protection against retaliation under federal law. See
Dellinger v. Science Applications Int'l Corp., No.
10-1499 (4th Cir. 2011). The employer had also prevailed at the
trial court level in Virginia.
Obviously, this decision bucks the recent trend of Supreme Court
decisions interpreting anti-retaliation cases broadly due to the
remedial purpose of the law. After all, it is hard to argue, as a
matter of policy, that it should be permissible to refuse to hire
an applicant but illegal to fire an employee for the exact
