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Neutral Reference Not Retaliatory Under Title VII

    Client Alerts
  • September 20, 2013

Employers commonly refuse to provide substantive replies to prospective employers' reference requests involving their former employees. These responses are usually based on concerns of defamation or libel suits by the former employee who claims that the former employer intentionally tried to prevent them from finding subsequent employment. In these cases, the former employer may confirm dates of employment or position held, but will decline to characterize the employee's performance. In response to a novel legal attempt, last month the Seventh Circuit Court of Appeals rejected a claim that such neutral reference was a retaliatory act under Title VII.

In Swanson v. Baker & McKenzie, LLP, the African-American plaintiff worked for the law firm in the 1990s. She resigned, contending that she was not allowed to transfer while white legal secretaries were permitted to do so. Years later after being laid off from her next employer, the plaintiff suspected that the defendant was providing information to prospective employers that was preventing her from securing employment. She hired a reference checking service that called the defendant. The law firm first could not find the plaintiff in its system. It later did so, but would only confirm her dates of employment. She sued, alleging retaliation.

The Seventh Circuit affirmed dismissal of the claim on the pleadings. The court found that the neutral reference was not retaliatory because it made no inference of negative performance by the plaintiff. The delay in locating her employment records likewise raised no negative inference, especially in light of the fact that the records were subsequently located and dates of employment confirmed. The court simply found that as a matter of law, these responses were not retaliatory, and that no available legal remedy applied in these circumstances.