Employee Rights: Is it Illegal Retaliation if My Former Boss Gives Me a Bad Reference?

It's finally over! You're done with your job, where you toiled under a bully boss who subjected you to a hostile work environment. But before your even done celebrating your new found freedom, you suspect that the jerk is still reaching from your former company to hurt you and your career. Twice you have been "the final candidate," for a great new job. Your interviews went great. You really like the new people you would be working with. The final hurdle, the new employer told you, is just the reference check. "I'm sure there won't be any issues," they told you. After a week you started worrying, and a few days later a sterile sounding form letter comes in the mail: "We're sorry to inform you that your were not the best fit for New Company, Inc. We wish you the best...."

What happened? They loved you at the interview. You nailed every question they threw at you. All that was left was the reference check.... the reference check! You realize that the bullying jerk you used to work for is probably saying bad things about you when he is called by your potential new employers. Even though you are outraged, you are not surprised. This boss loved to abuse employees. He actually appeared upset that you were leaving the company, as if he would miss having you under his thumb each day... so what can you do to cut off his abuse for good?

Just like a family that legally splits apart, your relationship with your old company is never truly over. You have ongoing obligations to keep private any trade secrets that you learned. You are obliged to not use the company's intellectual property for your own profit. And most importantly here, neither you nor the company say untruthful things that are damaging to the other's reputation.

If your former bullying boss is making untruthful statements to reference checkers who call about your past job performance, you have not one but two potential legal remedies that you can hit him or her with. As you may have guess, the law most former employees use in this situation is defamation. I have a related Hub that thoroughly covers suing a former employer for defamation. This Hub will focus on the second way of using the law to strike back at your abusive former boss: suing for discriminatory retaliation.

In 1997 the United States Supreme Court ruled that a former employee, Robinson, could sue her powerful ex-employer, Shell Oil, under the Civil Rights Act for giving out retaliatory negative job references. Robinson v. Shell Oil Co., 519 US 337 (1997).

In that case the employer, Shell Oil Co., fired its employee Charles T. Robinson, Sr. Robinson, who was African-American, immediately filed a complaint with the EEOC alleging that Shell had fired him because of his race. While his EEOC discrimination complaint was working its way through the system Robinson began to apply at other companies in an effort to get a new job. One company Robinson applied to contacted Shell seeking feedback on Robinson's work. According to Robinson, Shell gave him a negative reference not because he deserved it (he didn't), but because Shell was upset about the EEOC complaint and wanted to "get back at" him for filing it.

The reason this case went all the way to the Supreme Court is because the Civil Rights Act (often called "Title VII") prohibits employers from retaliation against employees who file discrimination claims. Shell argued that since Robinson was no longer an "employee" then he was not protected by the Act. The trial court (called "District Court") agreed with Shell. When Robinson appealed, the Fourth Circuit Court of Appeals also agreed with Shell. But when the case went to the Supreme Court, the Justices voted 9 to 0 that Title VII does protect former employee from retaliation, as well as current employees.

So what does this mean for you?

Because of Robinson v. Shell you can file a complaint with the EEOC, and if your company gives you a negative reference any time after that it will appear that the company is trying to retaliate against you for the EEOC complaint.

One key here is that you cannot file with the EEOC because you believe your bullying former boss is going to give you a bad reference. You only can file with the EEOC if your employer let you go because of your protected class status (See my Hub on "Protected Classes"). Robinson filed with the EEOC because he was African American. You may be able to file with the EEOC because you were fired due to your race, religion, color, national origin, gender, age, disability, veteran's status, or pregnancy (other protected classes exist as well).

Then, after you have filed with the EEOC, your former boss will not be able to retaliate against you with negative job references; you will be protected under federal law, and finally be able to put an end to his or her desire to "stick it to you" even after you've broken away from that hostile work environment.