Title VII not only protects employees from
discrimination on the basis of race, color, religion, sex, or national origin. The law
also prohibits employers from retaliating against employees for exercising their right to
file charges of discrimination. The federal appeals court with jurisdiction over the
mid-Atlantic region, including Maryland, recently ruled that an employer who falsely
provided a poor reference regarding a former employee had retaliated against the
individual in violation of Title VII of the Civil Rights Act of 1964. Robinson v. Shell
Oil, 66 FEP Cas. 1284 (4th Cir. 1995).
Robinson was fired by Shell in 1991. After his termination, he filed a race discrimination complaint with the Equal Employment Opportunity Commission (EEOC). Then Robinson sought employment with a different company. The company contacted Shell seeking a reference. According to Robinson, Shell provided the company with false information and a poor reference in retaliation for his filing of an EEOC charge. Consequently, Robinson filed a second complaint with the EEOC, alleging that Shell had retaliated against him by falsely providing a negative reference.
When the case went to court, Shell argued that Title VII does not protect former employees from retaliation and that Robinson had no grounds for bringing his lawsuit. The court disagreed, and expressly expanded Title VII's protection against retaliation to include former, as well as current, employees. The court reasoned that since it is illegal to fire an employee for complaining to the EEOC, it is also illegal for an employer to provide bad references in retaliation for an EEOC complaint. To allow either would prevent employees from reporting discrimination to the EEOC.
This decision significantly extends the time period during which an employer is responsible to an employee for retaliatory acts. Shell argued that employers will now be forced to defend retaliation lawsuits brought by former employees who discover the alleged wrongdoing years after it has occurred. The court, however, did not share Shell's concern. It indicated that the procedural safeguards in place would prevent employers from having to litigate stale claims.
In light of this decision, employers should carefully examine their procedures for giving out references regarding former employees. One option is to give a neutral reference, providing only the former employee's job title and dates of employment. (This also may prevent the former employee from bringing defamation claims based upon negative references). Another strategy is to keep detailed records of references given out and documentation justifying the reference given, but this approach is time-consuming and possibly more risky.
Robinson was fired by Shell in 1991. After his termination, he filed a race discrimination complaint with the Equal Employment Opportunity Commission (EEOC). Then Robinson sought employment with a different company. The company contacted Shell seeking a reference. According to Robinson, Shell provided the company with false information and a poor reference in retaliation for his filing of an EEOC charge. Consequently, Robinson filed a second complaint with the EEOC, alleging that Shell had retaliated against him by falsely providing a negative reference.
When the case went to court, Shell argued that Title VII does not protect former employees from retaliation and that Robinson had no grounds for bringing his lawsuit. The court disagreed, and expressly expanded Title VII's protection against retaliation to include former, as well as current, employees. The court reasoned that since it is illegal to fire an employee for complaining to the EEOC, it is also illegal for an employer to provide bad references in retaliation for an EEOC complaint. To allow either would prevent employees from reporting discrimination to the EEOC.
This decision significantly extends the time period during which an employer is responsible to an employee for retaliatory acts. Shell argued that employers will now be forced to defend retaliation lawsuits brought by former employees who discover the alleged wrongdoing years after it has occurred. The court, however, did not share Shell's concern. It indicated that the procedural safeguards in place would prevent employers from having to litigate stale claims.
In light of this decision, employers should carefully examine their procedures for giving out references regarding former employees. One option is to give a neutral reference, providing only the former employee's job title and dates of employment. (This also may prevent the former employee from bringing defamation claims based upon negative references). Another strategy is to keep detailed records of references given out and documentation justifying the reference given, but this approach is time-consuming and possibly more risky.