## Facts

- Willie Lewis Sherman, a Black employee of Burke Contracting, Inc., alleged he was discharged because of race and because he was married to a white woman.
- After leaving Burke Contracting, Sherman obtained a job with Palmer Construction Company.
- Sherman filed an EEOC charge alleging racial discrimination by Burke Contracting.
- Sherman was later terminated by Palmer Construction.
- Sherman secretly recorded a conversation with Palmer’s representative in which the speaker said Burke had called and persuaded Palmer to fire Sherman because Sherman filed the EEOC charge.
- Sherman sued Burke Contracting and its owner, asserting (1) discrimination relating to his discharge and (2) retaliation through interference with his subsequent employment, under Title VII and 42 U.S.C. § 1981.
- A jury found for Sherman on the § 1981 claim and against him on the Title VII retaliation claim, but the district court entered judgment for Sherman on both, treating the jury’s Title VII findings as advisory.
- Defendants appealed, challenging Title VII’s coverage of post-employment retaliation, § 1981’s reach after Patterson, and admission of the recorded conversation.

## Issues

1. Whether Title VII’s anti-retaliation provision permits liability for retaliatory acts by a former employer after the employment relationship ends, including inducing a new employer to discharge the former employee.
2. Whether, after Patterson v. McLean Credit Union, § 1981 permits recovery for post-employment retaliation by a former employer that does not involve contract formation or contract enforcement through legal process.
3. Whether admitting the secretly recorded conversation without objection or a limiting instruction was reversible error.

## Decision

- The court affirmed liability under Title VII, holding that § 2000e-3(a) reaches retaliation against former employees, including actions causing loss of later employment.
- The court vacated the § 1981 judgment and related punitive damages, concluding the retaliatory interference claim was not actionable under § 1981 as interpreted by Patterson.
- The court rejected the evidentiary challenge to the tape recording because defendants did not object at trial or request a limiting instruction, failing to preserve the issue for appeal.

## Legal Principles

- Title VII’s anti-retaliation provision applies to retaliatory conduct by a former employer against a former employee when necessary to carry out the statute’s remedial purpose.
- Post-employment retaliation can constitute an unlawful employment practice under Title VII when it adversely affects later employment opportunities, including causing termination by a new employer.
- Under Patterson’s pre-1991 interpretation, § 1981 was limited to discrimination in contract formation and contract enforcement through legal process and did not cover post-employment retaliation unrelated to those interests.
- A party that fails to object to evidence at trial and does not request a limiting instruction generally forfeits the claim of evidentiary error on appeal.

## Conclusion

The Eleventh Circuit held that Title VII prohibits a former employer from retaliating against a former employee by interfering with the employee’s subsequent employment, but it vacated § 1981 relief because, under Patterson’s then-controlling limits, the retaliatory interference did not involve contract formation or enforcement.


Sherman v. Burke Contracting, Inc., 891 F.2d 1527 (11th Cir. 1990)