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Retaliatory job reference is illegal even if a person’s hiring was unlikely

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in Employment Law,Firing,Hiring,Human Resources

When you provide references about former employees, keep quiet about whether the ex-employee had sued the company in the past. And train managers to do the same. Spilling the beans about litigious ex-employees could trigger a retaliation suit.

You now have even more cause to keep mum. Reason: To get a retaliation lawsuit to trial, employees must show that they suffered an "adverse employment action." Usually, that means a refusal to hire, a firing, a pay cut, etc. But the following ruling broadens that standard. It says employees can simply show that the alleged retaliation could potentially damage their future job opportunities.

Recent case: During her years as a government clerk, Terrie Hillig filed two EEOC complaints charging her supervisors with discrimination. Both complaints were settled out of court. Years later, Hillig applied for a personnel assistant job with another government agency. When she didn't get that job, she sued her original employer, alleging that the denial was caused by negative references from her previous supervisors.

The hiring manager said the unfavorable feedback didn't influence his decision not to hire her. Instead, he thought that her long fingernails would slow her typing speed.

Nevertheless, a federal appeals court allowed Hillig's case to proceed to trial, saying a successful retaliation claim doesn't require an employee to be rejected from a specific job. It's enough, the court said, for an employee to show only a likely effect on future job opportunities. (Hillig v. Rumsfeld, No. 02-1102, 10th Cir., 2004)

Final note: This case provides more motivation to give only 'name, rank and serial number' references or, at the very least, designate one person on staff to handle all reference inquiries.

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