I was wrongfully terminated by the end of last year. Currently I am in the middle of filing Human Rights complaint for racial discrimination. My employer posted the advertisement again to recruit for the same position that I held when I was with the company. Reinstatement is one of the remedies that I want to have through Human Rights complaint. I don't know if it is my best interest to apply for this position now. If I apply, what is effect to my Human Rights complaint from legal perspective? But if I don't apply, will it also effect my reinstatement request? This seems to be a very confusing situation. Please fill me in with your professional opinion. Thanks very much.

In order for you to get any helpful answers, you will need to provide more information. If your situation is sensitive and calls for discretion, i suggest that you restate it in a way that will provoke others to list their similar experiences. To respond to you questions, i'm sure that the record of termination is in file, which may work against you. If you reapply, that may reduce your chances of pursuing a legitimate complaint if the alledged violations are a common practice within the duties of the position. It's hard to comment with little information. again, i suggest you elaborate a little more.

You are always welcome to apply, bu there is no way anyone here can tell you whether you might be rehired or not. We have no idea why you were terminated, why you think you were terminated and what reason you were given.

If you have filed a claim then you should be working with a lawyer. If you aren't now, I suggest hiring one. The effects of any your current actions on any future litigation should be discussed with them as part of the overall case. Obviously if they rehire you, you can not be reinstated.

Why would you want to work for an employer you allege wrongfully terminated you on the basis of racial discrimination?

If I were representing the employer, I would certainly use this as evidence to impeach your credibility. In other words, Mr./Mrs. Hearing Officer, is it reasonable to suggest a complainant would willingly seek re-employment with an employer that he/she believes discriminated against her in the past?

Why would you want to work for an employer you allege wrongfully terminated you on the basis of racial discrimination?

If I were representing the employer, I would certainly use this as evidence to impeach your credibility. In other words, Mr./Mrs. Hearing Officer, is it reasonable to suggest a complainant would willingly seek re-employment with an employer that he/she believes discriminated against her in the past? That's a very strong point. One the the op should explain!

The wrongful termination was without just cause. I was on 12 months probation, and got terminated by the end of the term based on the excuse of performance issue, which was not true. Now my employer is going to fill this postion after almost a year. The reason I want to be back is I couldn't find employment. I don't know why, but this is the reality. I had a couple of interviews, however, I didn't get any offer. My concern is even if I apply, I don't know whether they are going to hire me back. My complaint is still not there yet. What is my best option here? Thanks!

What you describe, btw, does not constitute a wrongful termination under the law. The only state where just cause is required before an employer can term you is Montana, and even in Montana that is not always the case.

Nor does your employer have any legal obligation to rehire you.

Given that you were on a 12-month probation, terminated for poor performance and may have been subject to other progressive discipline (a guess on my part, not only will you have a difficult time proving the reasoning provided was pretextual, but also I don't see how you can expect the employer would consider re-hiring you.

My advice would be to continue your job search. :)

Why would you want to work for an employer you allege wrongfully terminated you on the basis of racial discrimination?

If I were representing the employer, I would certainly use this as evidence to impeach your credibility. In other words, Mr./Mrs. Hearing Officer, is it reasonable to suggest a complainant would willingly seek re-employment with an employer that he/she believes discriminated against her in the past?

That wouldn't work in federal EEO discrimination cases. While I question the practicality of applying for a job with an employer who has terminated you, applying would not damage your federal discrimination case. In fact, reinstatement to the job from which terminated is a part of the equitable relief that would be awarded if you prevailed in your discrimination claim.

If you desire payment of wages lost as a result of your allegedly illegally discriminatory termination, you must be able to show that you tried to find employment after your termination, i.e., attempted to mitigate your damages. Therefore, you should be looking for work and applying for jobs. However, you aren't required to apply for employment with your ex-employer.

However, since your complaint is being handled by a Human Rights agency, I suggest that you discuss this with staff of the agency.

I see all your opinions on this matter. Originally, I have two concerns.
1. What do you think that a person who was terminated by the former employer plans to response the ad for the same position?
2. The termination was resulted in based on racial discrimination. The remedies I am seeking is reinstatement. So what effect will it have if I reapply if my case is found to have merit?

Personally I felt not right to apply, but since the opportunity is very limited here, I am willing to have the job back. But what I think doesn't matter. However, this position would go to somebody soon for sure if I don't apply. But I believe I am the strongest candidate for the position if I apply. I though this would add some weight to my EEO complaints if my previous employer refuses to consider my application. Do you think the same way? I am not sure if my logic makes sense.

That wouldn't work in federal EEO discrimination cases. While I question the practicality of applying for a job with an employer who has terminated you, applying would not damage your federal discrimination case. In fact, reinstatement to the job from which terminated is a part of the equitable relief that would be awarded if you prevailed in your discrimination claim.

I respectfully disagree. If the matter ever went to trial before a jury or even a bench trial, this most definitely would speak to credibilty of the complainant. The employer's attorney would not be doing his/her job if he/she failed to make such an inquiry and no reasonable judge would preclude such an inquiry.

Also, it is my experience is these matters that courts are reluctant to order reinstatement for practical and pragamatic reasons. It simply would not be a productive working environment to place an unwanted complainant with an employer that would have been found to violate the law. I am not stating it never happens, rather it is not the norm. The better remedy, for all parties, is monetary damages.

Therefore, my point is why request it in the first place, if it would more than likely be used to impeach you as the matter progressed during litigation.

I though this would add some weight to my EEO complaints if my previous employer refuses to consider my application. Do you think the same way? I am not sure if my logic makes sense.

Applying for the job and having the employer reject you wouldn't have much, if any, impact on your claim of discriminatory termination. Your employer most likely would state that you aren't eligible for rehire because you were terminated.

I don't agree with rjc's view. I've never seen anyone successfully argue that a plaintiff's desire to resume or continue employment with an employer who s/he has accused of discrimination raises a question of credibility. An employee has a statutory right to work in an environment free of discrimination. Employees, their representatives and government enforcement agencies litigate to ensure that employers comply with the law. The EEO statues are remedial, not prospective. Most awards reinstating employees contain provisions to ensure that the employer corrects the discriminatory behavior and to prevent is recurrence.

Usually, it is the plaintiff who decides whether s/he wants reinstatement and so informs the court in his/her prayer for relief. I've never heard of a court refusing to allow reinstatement if reinstatement is a part of equitable relief and it's what the plaintiff seeks.

[mitousmom wrote
Applying for the job and having the employer reject you wouldn't have much, if any, impact on your claim of discriminatory termination.]

If I apply for it, I won't mind if my employer rejects me for this application since this will be the highest possibility. What I am concerned is the "impact" on my claim of discriminatory termination. rjc expressed the same opinion: " give my employer an evidence to impeach my credibility" But I can't think of any legal evidence this would give my employer to question my character or credibility. To be specific, how would my employer use this against me? It is true it is not logic to make complaint on one hand, and apply for the same job on the other hand. Sorry I am not a lawyer, and have little legal knowledge. Can you explain the logic reason here? Thanks again

Obviously, mitousmom and I disagree on this point. But I want to be clear that I am not stating that you cannot apply for this position and pursue your complaint. Of course you can.

However, I offered my opinion as to how it may be used against you. It does not mean that it will.

I have seen and been part of these claims where it was used and although it may not have been the seminal reason that the employer prevailed, I am certain it aided the employer's defense. You will have to testify and be subject to cross-examination. Just as employees, their counsel and state agencies litigate to ensure the law is complied with, employers and their counsel equally litigate to demonstrate that have so complied and/or that the claim is without merit.

If you you prove discrimination you most certainly have the right to request reinstatement, but it is ultimately the court's decision to grant what it believes is equitable.

I don't know what you expect to gain by applying for your old job. Applying will not preserve your job and it's not going to strengthen your claim of discriminatory termination. There is no legal requirement that you must reapply to be able to proceed on your claim of discrimination.

I think it would really be a waste of time and may seriously annoy your ex-employer, which could lessen its willingness to try to settle your matter. Since you have filed a charge of discrimination with an agency, I suggest that you discuss your plans with them and ask for their advice.

I know that you are having a hard time finding employment, but personally I think that the worst thing you can do at this point is re-apply, for several reasons. As rjc said, don't think for one minute that it wouldn't be used against you in court. If you are unhappy enough with that company to go as far as filing a complaint, then why would you willingly apply for a job that would put you back in the same situation? They will say that it must not have been that bad if you are willing to go back on your own accord without a judge ordering it. Bad move. Diminishes your claim. Secondly, if you were re-instated, what do you really think your work environment would be like? I have been through this with a company. Not myself, but as a manager. And I am here to tell you it is no good. You will go back, and people will treat you differently. Some will be nice, most will steer clear of you. The person that returned to my company was an outcast. And to be honest, no one really respected him at that point. Not to mention that his manager was on him like white on rice. At that point they will look for any little error to be able to fire you legitimately. Again. I know you are having trouble finding a new job, but maybe broadening your search would help. Other close areas, slightly different field, slightly lower pay, ect. I think that it would be in your best interest to continue your job search, and leave the employer alone at this point. Follow through with your claim, but do not re-apply. Good luck.

Shopgirl75:

I don't think that the OP should apply for his old job, but I don't agree with the reasons you provide for him not to do so.

I've already addressed the notion that his reapplication could damage his discrimination claim or bring into question the sincerity of his allegation.

How he would be received should he reapply and get the job, depends upon a multitude of factors, including the organizational culture, how he was viewed as an employee, the perception of the merit of his claim, the size and sophistication of his employer, etc. While you may have observed a situation where the returning employee was treated as an outcast, I've seen situations where the complainant or plaintiff returns as a hero or with elevated stature. Rather than observing returning complainants suffering retaliation, I've seen too many situations in which the employer is reluctant to do anything adverse to the employee, even when it is deserved.

I think you over-estimate the negatives associated with alleging discrimination. Many employers don't take it personally anymore and they are better at making sure that the individual manager whose actions were the subject of the discrimination claim doesn't do that either. Statistics don't support the belief that complainants routinely suffer retaliation for filing administrative complaints of discrimination or filing lawsuits.

Guess it depends on the company and the employees. Each situation is different. As I said before, I have been through this on the management side, and have not seen great results. Again, depends on the company and the environment. It would be foolish not to advise that it is a possibility. We can't predict how it will turn out, but we can at least prepare him for the possibility.

Thank you for the input. At this point, I know what I should do. It is really good to hear so much information that helped me to make a sound decision.

Thanks again.