Q. How should we handle giving references about a former employee who was involved in litigation against the company or filed an administrative charge with a government agency, such as the EEOC or the U.S. Department of Labor? Should we include that information in response to the reference? Or should we not provide any information at all?
A. You must handle reference requests relating to former employees who sued or filed an administrative charge against your company in precisely the same manner as requests relating to other former employees.
The position of the EEOC (as well as many courts) is that the mere act of notifying a prospective employer of a lawsuit or charge filed by a former employee constitutes unlawful retaliation (assuming that the lawsuit or charge alleged violations of Title VII, the Age Discrimination in Employment Act or some other statute over which the EEOC has jurisdiction).
On the other hand, retaliation also has been found when an employer refuses to provide any reference whatsoever for a former employee who filed such a lawsuit or charge, unless it similarly refuses to provide references for other former employees.
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