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Be careful what you write

August 13th, 2013  |  Kathy Kapusta

To avoid potential problems in giving references, many employers have adopted a policy of releasing only very limited objective and factual information, such as dates of employment and salary history. One obvious danger of providing a recommendation is the possibility of being sued if the employee does not perform satisfactorily or does something to damage the company that relied on the recommendation.

Supervisors say the darnedest things. Two recent court decisions should serve as reminders to employers of the hazard of providing recommendation letters, even well intentioned ones to good employees. In a decision from the Sixth Circuit, a 52-year old employee was laid off following a downturn in his employer’s business. He was chosen after his supervisor, who had been asked to rank all the employees against each other, placed him at the bottom of the list. Unfortunately for the employer, when the supervisor informed the employee of his termination, he told him that age played a factor in the decision and admitted that he retained a younger worker because he would be with the company longer than the employee.

At the employee’s request, the supervisor wrote a letter of recommendation in which he described the employee as “a key member of the design group,” who “performed all the tasks given to him at a high level.” When the employee subsequently sued for age discrimination, the Sixth Circuit rejected the company’s argument that it would have discharged him absent an impermissible motive because he was an inferior performer compared to the younger worker. While there was some evidence to support this, the court found that a genuine fact issued existed, thanks in part to the supervisor’s letter. Although not a “glowing recommendation,” it was enough, in the court’s opinion, to establish that the employee was a competent worker. Accordingly, the employee could proceed to trial on his state law age bias claim.

But it wasn’t really a recommendation. Just one day earlier, a federal district court in Virginia found that there was a fact issue as to whether an assistant librarian, who sued a school board for religious discrimination, was performing satisfactorily at the time of her discharge. In this case, the court found that there was ample evidence that she was having performance problems. Despite this, it denied the employer’s motion for summary judgment based in part on the favorable letters of recommendation that the principal and assistant principal wrote for the employee immediately after she was terminated. While the employer argued that the letters did not actually “recommend” the employee for any job and that neither letter expressly stated that she was performing satisfactorily in her job, the court was not persuaded. “Viewing both letters from the perspective of a future potential employer who received them, the message conveyed is much simpler: [the employee] was a great employee.” Thus, in the court’s view, the letters provided at least some evidence that she was performing satisfactorily.

While in both of these cases, the employers, or at least the supervisors, appeared to be trying to “do the right thing” for employees who just lost their jobs — one in a downsizing and the other in part because of a personality conflict  — the recommendation letters were used by both employees to support their contention that they were not fired due to poor performance but rather because of their employer’s discrimination. For those employers that do not absolutely prohibit letters of recommendation, and even for those that do, these cases provide yet one more reminder of the importance of training all supervisors to understand the difference between their personal opinions and actions, and those actions that arise out of their employment status that could be attributed to their employer.

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