Foley & Lardner - Labor and Employment Law Weekly Update (Week of August 22, 2011)

A Negative Job Reference Can Lead to a Claim of Retaliation
By Philip B. Phillips

Providing negative job references to prospective employers about one of your former employees could constitute unlawful retaliation in violation of the Americans With Disabilities Act (ADA), the Family Medical Leave Act (FMLA), and similar anti-discrimination laws.

In Male v. Tops Markets, LLC [an enhanced version of this opinion is available to lexis.com subscribers], a federal court in New York ruled in favor of a former employee, who claimed that the company provided negative job references to potential employers in retaliation for her having filed an earlier lawsuit and charge of discrimination. She claimed that in response to a question from a prospective employer regarding what kind of employee she had been, and would be, the former employer responded that she was a good employee the first couple of years, but thereafter began having personal problems that spilled over into her professional life, and missed and was late for work because of her personal and medical issues.

The court ruled the former employee's allegations were sufficient to support a claim of unlawful retaliation against her former employer. It also stated the alleged comment regarding her "medical issues" created a reasonable inference that the former employer was referring to her absences which she allegedly took under the FMLA or because of her alleged disability.

Other courts, including the United States Supreme Court, have previously held that a negative reference also can support a claim of retaliation under Title VII of the Civil Rights Act of 1964. The EEOC's Compliance Manual notes that unlawful retaliation can occur even after the employment relationship has ended:

Examples of post-termination retaliation include actions that are designed to interfere with the individual's prospects for employment, such as giving an unjustified negative job reference, refusing to provide a job reference, and informing an individual's prospective employer about an individual's protected activity. . . . Retaliatory acts designed to interfere with an individual's prospective for employment are unlawful regardless of whether they cause a prospective employer to refrain from hiring the individual . . . However, the fact that the reference did not affect the individual's job prospects may affect the relief that is due. (EEOC's Compliance Manual, pg. 13)

It is unlawful for employers to give a negative job reference, or refuse to give a reference, because a person has complained of unlawful discrimination or otherwise engaged in protected activity under federal or state civil rights laws. Many employers have adopted a neutral reference policy and provide only a former employee's position, dates of employment, and salary information. It is important, however, that such policies are not only adopted, but applied consistently and communicated to all management personnel likely to receive reference requests. Employers are also well-advised to not provide information regarding a former employee's protected activity (lawsuit, EEOC charges, EEO complaint, workers' compensation claims, and so forth) or medical issues to a prospective employer in response to a reference request.

Labor and Employment Trivia

Last week, we add a new feature to our weekly Employment Law Update, Labor and Employment Trivia. Each week following our regular articles, there will be a trivia question with some historical perspective. It is hoped that our readers will have some fun and learn a thing or two about the field in which we work. The answer to each week's question will appear in the following week's update. Readers are invited to send comments or suggested trivia questions to Mark Neuberger mneuberger@foley.com.

Last week's question: What labor union leader garnered nearly one million votes for president of the United States while he was jailed inside a federal prison?

Answer: Eugene Victor Debs (November 5, 1855 - October 20, 1926) was a colorful character. He helped form the American Railway Union and was a leader in the great Pullman Strike of 1894. The strike was crushed when the U.S. Army was called out presumably because the strike was interfering with the delivery of the U.S. mail. Debs was imprisoned for leading the strike and while in prison, became a full blown Socialist. Debs was also involved in the formation of the Industrial Workers of the World. Debs was again imprisoned under the Espionage Act of 1917 when he spoke publicly against the WWI draft. His conviction was upheld by the U.S. Supreme Court in Debs v. United States, 249 U.S. 211 (1919) [enhanced version / unenhanced version available from lexisONE Free Case Law]. Debs ran for president five times on the Socialist Party ticket. In the 1920 presidential election, while in federal prison, he received more than 900,000 votes.

This week's question: The Age Discrimination in Employment Act prohibits discrimination against persons who are age 40 or older. Why was 40 picked as opposed to 21, 65, or any other age?

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