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A True Statement To An Ex-Employee's Prospective Employer May Be Retaliation

Can telling the truth during a reference check get an employer in trouble? Maybe!

In Shakerdge v Tradition Financial Services, Inc., a federal court in Connecticut examined a situation in which an employee who was terminated filed suit under Title VII against her previous employer alleging she was subject to a sexist and racist hostile working environment. The employee then sought other employment and actually was offered a job at another firm. Although the details of her new employment were not finalized, she began going to the office to fill out the necessary HR paperwork. After the employment offer for the new job was rescinded, she learned that she had lost her job because her former employer had informed her potential new employer about her discrimination lawsuit.

The employee’s former employer sought to dismiss the matter and appeared to argue that it could not be sued for telling the truth. The Court noted, however, that truthfulness is not the standard, and that a true statement offered in retaliation for protected conduct, like the filing of a lawsuit, could very well constitute a retaliatory action. While it did not finally decide that issue, it did deny the previous employer’s motion to dismiss and ordered the matter to proceed to trial.

Obviously, this is not a final decision on the merits. However, it should serve notice to employers everywhere that there is danger in being too candid with respect to a previous employee who had engaged in the activity of protesting alleged discriminatory actions or even filing a discrimination charge or lawsuit.