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  1. #1
    legalsec Guest

    Refusing to Provide Job Reference - Retaliation

    What is the name of your state? CA

    Several days ago I asked whether or not an employer can refuse to provide a job reference. CBG stated that a former employer cannot be forced to give a reference.

    Since then I have done a little legal research and discovered that under EEOC guidelines, refusing to provide a job reference could be considered retaliation when an employee or former employee exercises their rights under Title VII. Even when the employee suffered no adverse reaction, when the intent of an employer is to retaliate for the employee taking action that is protected under Title VII, the employee may have a claim. Hashimoto v. Dalton, 118 F.3d 671, 676 (9th Cir. 1997).

    In Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000), the 9th Circuit specifically adopted the EEOC's interpretation of "adverse employment action" in the retaliation context to mean "any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity." "There is nothing in the law of retaliation that restricts the type of retaliatory act that might be visited upon an employee who engages in protected activity." See Ray, 217 F.3d at 1243, quoting Knox v. State of Indiana, 93 F.3d 1327, 1334 (7th Cir. 1996). Therefore, where an employer has consistently provided an excellent job reference for a number of years and then violates that policy after the individual has engaged in a protected activity (i.e., advising employer that he has violated the law by divulging confidential informatin), this action could be considered retaliatory.

    I am posting this because others may be interested.
  2. #2
    Beth3 is offline Senior Member
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    So did you file a complaint of discrimination with the EEOC or your State's equal rights division? If I recall your post correctly, you elected not to.

    cbg was correct in saying that no laws compel an employer to provide job references. The law still doesn't compel that - but it does prohibit retalliation in all forms, including this one.
  3. #3
    HomeGuru is offline Senior Member
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    Re: Refusing to Provide Job Reference - Retaliation

    Originally posted by legalsec
    What is the name of your state? CA

    Several days ago I asked whether or not an employer can refuse to provide a job reference. CBG stated that a former employer cannot be forced to give a reference.

    Since then I have done a little legal research and discovered that under EEOC guidelines, refusing to provide a job reference could be considered retaliation when an employee or former employee exercises their rights under Title VII. Even when the employee suffered no adverse reaction, when the intent of an employer is to retaliate for the employee taking action that is protected under Title VII, the employee may have a claim. Hashimoto v. Dalton, 118 F.3d 671, 676 (9th Cir. 1997).

    In Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000), the 9th Circuit specifically adopted the EEOC's interpretation of "adverse employment action" in the retaliation context to mean "any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity." "There is nothing in the law of retaliation that restricts the type of retaliatory act that might be visited upon an employee who engages in protected activity." See Ray, 217 F.3d at 1243, quoting Knox v. State of Indiana, 93 F.3d 1327, 1334 (7th Cir. 1996). Therefore, where an employer has consistently provided an excellent job reference for a number of years and then violates that policy after the individual has engaged in a protected activity (i.e., advising employer that he has violated the law by divulging confidential informatin), this action could be considered retaliatory.

    I am posting this because others may be interested.
    **A: you are missing the point and way over your head with this one.
  4. #4
    legalsec Guest
    I never made a statement regarding whether or not I intended to file an EEOC complaint so I don't know where you got that idea. However, I have decided to file one.

    If HomeGuru thinks I am way over my head, then please provide some legal verification of that
  5. #5
    Beth3 is offline Senior Member
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    I think what he's getting at is that if you haven't yet made a complaint of prohibited discrimination, then the employer's refusal to provide a reference can't be retalliation.
  6. #6
    legalsec Guest
    Thank you. I wish he had just said so.

    In answer to your question, this employer divulged information about my disability to a potential employer. I wrote him a letter advising him that this was illegal, and that he knew it was illegal. He knew this because he and I had had conversations about it and about the fact that when employers knew about my disability during the interview process they would not hire me. Since I wrote that letter opposing his illegal revealing of my disability he has not given me a reference even though he had always given me a glowing reference before. His act of telling my potential employer about my disability was also retaliation, but I never did anything about that and the statute of limitations has passed. See, it is complicated. I may not have a case, but I'm going to at least talk with the EEOC about it.

    Thanks for your efforts.
  7. #7
    I AM ALWAYS LIABLE is offline Senior Member
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    My response:

    You cited regional Federal Appeals court decisions. Well, now it's the "law of the land".

    Retaliation can continue even after the employment relationship has ended; e.g., interfering with an individual's prospects for new employment by refusing to give a job reference or giving an unjustified negative reference, based on a retaliatory motive. [See Robinson v. Shell Oil Co. (1997) 519 U.S. 337, 345-346, 117 S.Ct. 843, 848-849]

    You'll notice that the cited case is a United States Supreme Court decision.

    IAAL

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