Finding a new job can be hard. It may become impossible if your last job is badmouthing you to your potential new employers during reference checks. There are several things that you need to consider when you think that your prior employer is sabotaging you by giving you bad references.
First, consider possible state laws that might make such negative references unlawful. (Best Law Read: Ohio Law Protects Employees Against Negative Job References; Can I Sue My Former Boss For Bad Job References? Best Employment Lawyer Reply!). For example, Ohio’s R.C. § 4113.71 provides that the company that you used to work for will be liable for giving a negative reference to a potential new employer if either of the following apply:
- The former employer knowingly, intentionally, or in bad faith makes false or misleading references regarding the departed employee; or
- The reference violates Ohio’s anti-discrimination laws.
Second, you may consider whether the reference violates federal employment laws, including Title VII of the Civil Rights Act of 1964, Americans with Disabilities Act (“ADA”), Family and Medical Leave Act (“FMLA”), Fair Labor Standards Act (“FLSA”), Age Discrimination in Employment Act of 1967 (“ADEA”), and Genetic Information Nondiscrimination Act (“GINA”) – all of which make it unlawful for an employer to take an adverse employment action – which would include giving bad job reference – either based on the employee’s protected class or in retaliation for reporting, opposing, or participating in an investigation into workplace discrimination or harassment based on a protected class. (Best Law Read: What Constitutes An Adverse Employment Action Under Title VII?; What Is An Adverse Employment Action?). Specifically, these protected classes would include, race/color, religion, gender/sex, pregnancy, sexual orientation, gender identity, national origin, disability, and age. Thus, employers cannot make exceptions to its neutral reference policy based on one of these protected classes. For example, an employer cannot give neutral references to all white or straight employees but provide negative references (regardless of truth) to Black or gay employees. Likewise, employers cannot make exceptions to its neutral reference policy or outright falsify references to retaliate against an employee who reported, filed an Equal Employment Opportunity Commission (“EEOC”) charge, or even sued for sexual harassment or age discrimination. (Best Law Read: Don’t File With The EEOC On Your Own; It’s Bad To File With The EEOC Without A Lawyer; The EEOC Will Not Help You Properly Fill Out The Charging Form; Read This Before Filing An EEOC Charge).
Third, you are going to need evidence to support this claim. Unfortunately, you cannot rely on the assumption that bad or false references are being given. Even if you lose out on a job after the potential employer tells you that you will be hired once your job refences come back, you will not be able to make a claim unless you have specific evidence that your former employer is the one that gave a bad reference. No assumptions no matter how obvious they seem to be.
This is what recently happened in Teague v. Williamson Cnty., No. 22-50202, 2022 WL 16956794, at *1 (5th Cir. Nov. 16, 2022). Mary Teague was employed a deputy for the Williamson County Sheriff’s Office from January 2011 until she was honorably discharged in November 2013. During her employment, Teague participated in an investigation into another officer’s discriminatory and harassing conduct. Between 2016 and 2017, Teague applied to two other law enforcement offices, but was not hired. She presumed that the Williamson County Sheriff’s Office had given her negative references. The presumption was not enough. The United States Court of Appeals for the Fifth Circuit held: “While the provision of a negative reference may form the basis of a retaliation claim, the district court found that Teague offered no competent summary judgment evidence that Williamson County provided a negative reference to either Travis County or Giddings.” Id. at *1. The Fifth Circuit then affirmed, holding: “After carefully reviewing the record and the remaining issues raised on appeal, we agree with the district court that Teague has failed to present summary judgment evidence.” Id. at *2.
How do I get evidence that my former employer is giving me bad references?
There are several ways. Obviously, a polite request to the potential new employer may get the information that you seek. However, our employment law lawyers strongly recommend making this request in writing, which may trigger a written response. Absent a written response, many employers will subsequently deny having provided such information in order to avoid being pulled into litigation.
If you cannot get the information from the potential new employer, you can arrange for a third party to request a reference from the former employer and see what happens. Be careful to avoid misrepresentation during this attempt. Simply stating that the person is calling for a reference is sufficient and true. Moreover, it would be better to avoid having a friend or family member seek the reference because their credibility will be subject to an attack during litigation based on their relationship to you. A good option is to contract with a staffing or employment placement agency, who has no prior relationship with you and no motivation to lie about the situation. You should be upfront with the agency and let it honestly call and document the reference.
Lastly, once in litigation, your employment lawyer can subpoena records from subsequent employers that may have received negative references.
How do I sue my employer for lying about me during reference calls?
Best Employment Lawyer Answer: If you are losing job opportunities because the company that you worked for is giving you false, discriminatory, or retaliatory job references, it is best to call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?; Why Having Skilled Employment Attorneys Is Critical; Employment Law: Avoid Hiring The Wrong Attorney). Our, Ohio, Michigan, and North Carolina lawyers have regular dealt with this type of situation and are successful in getting results. Importantly, once an attorney gets involved, the former employer knows that it is being watched and often stops to negative references.
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