Many employers delay taking adverse action against employees who have filed a complaint regarding workplace practices. This delay may in part be attributable to fears that the timing of a termination or other action soon after the complaint is received would be perceived as retaliatory. However, does the passage of time alone insulate an employer from claims of retaliation?

Earlier this month, the Fourth Circuit Court of Appeals (which includes North Carolina and South Carolina) reversed a grant of summary judgment for an employer based on a two-year gap between the complaint and the alleged retaliatory conduct. In Templeton v. First Tenn. Bank, the plaintiff quit following her allegations of sexual harassment. She reapplied for employment two years later, and filed a retaliation charge when she was not rehired.

The employer claimed that this long time lag demonstrated as a matter of law that the hiring decision could not have been based on the previous harassment complaint. The Fourth Circuit disagreed, concluding that there is no amount of time that serves as an automatic cut-off for retaliation claims. In this case, the plaintiff introduced evidence that she was considered by management to be a troublemaker. She also pointed out that due to her previous resignation, her reapplication for re-employment was the first opportunity that employer had to retaliate against her.

At trial, the plaintiff may have a difficult time proving her case. In most situations, the passage of time will act as evidence that later adverse actions were based on other grounds. However, this case demonstrates that this time lag alone is not enough to defeat the retaliation claim. Employers still must be able to demonstrate the legitimate, non-retaliatory reasons for the action taken.