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Worker settled case? Beware providing bad references that could lead to retaliation claims

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in Discrimination and Harassment,Employment Law,Human Resources

Here’s another reason to avoid providing too much information when prospective employers call for a reference on one of your former employees. Providing a negative reference for an employee who filed a previous EEOC complaint that your organization settled may lead to a retaliation lawsuit.

The better approach is to adopt a blanket reference policy that provides just the basics: employment dates and positions held. In those rare instances when you believe a former employee may be a danger to others, consult with your attorney before providing any information. He or she can help determine whether you owe it to prospective employers to reveal negative information.

Recent case: Jonathan Burroughs worked for The Home Depot and claimed that he had been discriminated against because he is white. He was part of a larger group of employees who settled a class action based on reverse discrimination. After the settlement, he claimed The Home Depot had provided prospective employers with negative information, thus preventing Burroughs from finding gainful employment.

The court dismissed the case on a technicality. Burroughs had missed checking the box on the EEOC complaint that said he was alleging retaliation. Had he done so, the court would have entertained his retaliation claim if he could show The Home Depot really did provide negative information. (Burroughs v. Home Depot, No. 07-CV-01380, DC CO, 2008)

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