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Beware changing recommendation after discrimination claim

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in Employment Law,Human Resources

Many employers have strict policies on giving references for current or former employees seeking other jobs: Keep it simple—dates of employment, positions held and pay rates.

But sometimes supervisors supply glowing recommendations anyway. They need to know that if they do, they had better be willing to stick with the accolades, even if their relationships with the employees change.

That’s especially true if the change of heart comes shortly after the employee files internal discrimination charges against the organization. Simply put, retracting or downgrading a reference looks, smells and feels like retaliation. And that makes it illegal, as such an action probably would be enough to make a reasonable person think twice before voicing discrimination complaints.

Recent case: Darwish Heba, a naturalized U.S. citizen born in Egypt, worked for years as a parole officer for the New York State Division of Parole. For the most part, he got along well with his supervisor, although he would later claim the supervisor was hot-tempered, prejudiced and difficult to work with.

Then came Sept. 11, 2001. A native Arabic speaker, Heba applied to work for the FBI as an Arabic translator. His boss wholeheartedly recommended him for the job.

Then Heba and his boss got into several shouting matches, with the supervisor claiming Heba was insubordinate. Around the same time, Heba filed an internal discrimination complaint, alleging that over the years, his boss had made offensive anti-Arab comments.

Within a week, the boss called the FBI and retracted his positive reference based on Heba’s insubordination. The FBI didn’t hire Heba, and he sued the Division of Parole, alleging a racially hostile work environment and retaliation.

The court tossed out the hostile environment claim, concluding that the isolated comments weren’t severe enough. But the court said the retaliation case could go forward. It said a reasonable person might refrain from filing a discrimination complaint if a previous positive reference were suddenly withdrawn. (Heba v. New York State Division of Parole, No. 03-CV-6055, ED NY, 2007)

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