The Impact of Discrimination Laws on Management Liability for Employment References

Article excerpt

Introduction

The lessons taught by Title VII of the Civil Rights Act of 1964 have been so drummed into the collective minds of management, that almost every employer now knows that discrimination in employment based on race, color, religion, sex, and national origin is prohibited. If the number of claims filed with the EEOC (the Equal Employment Opportunity Commission) or in court are any indication, these lessons have not been put rigorously into practice. Nevertheless, the theories are at least well established though not always implemented. Pursuant to Title VII, employers are not allowed to discriminate when it comes to hiring, firing, privileges, compensation and promotion. At first glance, the prohibited conduct addresses employees' rights both before and during employment. However, many employers may not realize that the prohibitions encompass post-employment conduct as well. An employer who discriminates against a former employee or retaliates against an employee who filed a claim with the EEOC through the use of a pejorative and damaging reference can also be held liable for violation of Title VII.

Former employees who have sued their prior employers because of their dissatisfaction with the references given to prospective employers, have been given a lot of exposure in courts. Their likelihood of success has increased through the development of doctrines and interpretations of the law sympathetic to their plights. Judges and juries have responded accordingly, ruling in favor of employees in the types of cases that employers would have won in prior decades.

The most common theory of liability is the claim of defamation. However, cases relying only on defamation are not always successful due to the potent defenses available to employers. Because of this, creative plaintiffs have sought out other causes of action to bolster their offensive attacks. The claim of discrimination provides an attractive alternative. While a claim of defamation may not scare management from a public relations point of view, a charge of discrimination is a slur that a company sensitive to its public image would make efforts to avoid. In addition, although a defamation suit could be defeated through proof of truth of the disputed statement, a discrimination suit may still be successful regardless of truth if the statement was motivated by discriminatory intentions.

In this article, the law of discrimination and its impact on employee references are examined by reviewing and discussing relevant court cases. Some practical suggestion are thereafter offered to management to assist them in avoiding liability in the future.

Discriminatory References

Some employers have retaliated against former employees who have filed civil rights discrimination claims by giving prospective employers negative references and advising them of the fact of EEOC filing. Although some earlier cases refused to recognize post-employment blacklisting or negative references given to prospective employers as a cognizable claim under Title VII,|1~ most later cases regarded such claims as consistent with the rights protected under Title VII.

In Silver v. Mohasco Corporation,|2~ the plaintiff claimed that he had been harassed and discharged due to religious discrimination and that Mohasco had blacklisted him by supplying unfavorable references to prospective employers. The court reinstated the blacklisting claim after it had been dismissed by the federal district court, even though it had not been investigated as part of the EEOC filing, holding that it was reasonably related to the alleged discrimination.

The United States District Court for the Northern District of Illinois held in Bilka v. Pepe's Inc.|3~ that even though the employment relationship had ended, an employer can still violate Title VII. If an employer gives employment agencies and prospective employers unfavorable references in retaliation against a former employee who filed a national origin discrimination charge with the EEOC, it can be held liable under Title VII. …