A recent Pennsylvania case provides a good reminder that retaliation claims can arise long after an employee is no longer employed and that employers need to keep potential retaliation claims in mind when responding to reference checks on former employees.
In Leese v. Commonwealth of Pennsylvania, the plaintiff is a former employee of a state agency who made an internal complaint of sexual harassment against a male superior while she was an employee. While still employed, she filed a charge of discrimination and resolved that charge by entering into a settlement agreement that included, among other things, an agreement that she would resign from employment and could not seek employment with a specific subset of state agencies but that she could seek employment within other areas of state government.
The plaintiff applied for several positions in the state government and private sector but was not hired. She filed a federal lawsuit alleging retaliation by her former employer based on the way her separation was coded within the employer’s system and the manner in which reference checks were being handled by her former employer. The plaintiff alleged the process for handling inquiries about her employment was atypical and raised flags to potential future employers. Evidence was presented that within the former employer’s internal recordkeeping system, the former employer coded the plaintiff’s separation as “voluntary resignation contact former agency.” Calls seeking references were sent to the former employer’s counsel who responded by stating he could make no comment about the plaintiff’s separation. The plaintiff claimed that the manner in which her reference checks were handled was retaliatory because she had previously filed a charge of discrimination. This past month, a federal judge in Pennsylvania ruled that the plaintiff had presented enough evidence to support her retaliation claim and allowed the matter to proceed to a jury trial.
The EEOC’s guidance explains in detail that it is unlawful for employers to give a negative job reference, or refuse to give a reference, because a person has complained of unlawful discrimination or otherwise engaged in protected activity under federal or state civil rights laws. Having an established neutral protocol for handling references and consistently following that neutral protocol can minimize the risk of a retaliation claim arising long after the employment relationship ends. Employers also should consider consulting with legal counsel about proactively addressing in settlement agreements how reference inquiries will be handled to avoid potential misunderstandings between the parties in the future.