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Can A Negative Employment Reference Be An Adverse Employment Action?


Overview of Federal Laws Protecting Workers from Employer Retaliation

There are various federal employment laws that protect individuals from being retaliated against for engaging in protected conduct. These laws include, but are not limited to:

  • Title VII of the Civil Rights Act of 1964 (“Title VII”)
  • The Americans with Disabilities Act of 1990 (“ADA”)
  • The Family Medical Leave Act of 1993 (“FMLA”), and
  • The Age Discrimination in Employment Act of 1967 (“ADEA”)

The general elements of a retaliation claim are:

  • That the employee engaged in protected activity,
  • That the employer took an adverse employment action against the employee; and
  • A causal connection between the protected activity and adverse employment action exists.

Can Negative Job References Be Considered an Adverse Employment Action?

Typically, the adverse employment action must be tangible, such as termination, demotion, or a cut in pay. In recent years, a Federal District Court within the Northern District of Alabama (“District Court”) ruled that a negative employment reference could be an adverse employment action for purposes of a Title VII claim.

In the Northern District case, the employer argued that an employment reference could only qualify as an adverse employment action if it is false. The District Court rejected this argument. The District Court held “a negative employment reference, even if providing only true information, can qualify as an adverse employment action because a true reference could serve to dissuade a reasonable employee from pursuing a protected activity just as much as a false one.”

The District Court reasoned that even true references could harbor retaliatory intent as an employer could volunteer more negative information than requested or provide an unsolicited negative reference.

Whether an employer’s action against an employee rises to the level of “adverse employment action” for purposes of a Title VII claim is a question of fact. This requires the trier of fact to determine whether, as a result of the employer’s action, the employee suffered an objectively serious and tangible harm.

In the case referenced above, the District Court found that the employer gave five (5) potentially negative references to the employee’s various future employers. Thus, the District Court found that the same constituted an adverse employment action. The District Court then went on to analyze the rest of the retaliation elements, and ultimately found that the employee could not connect his protected activity to the negative employment references.

Learn More About Your Employment Law Rights

If you feel your employment rights have been violated, or if you have any other questions regarding your employment rights, please contact the experienced Birmingham employment law attorneys at Michel | King. You can contact us either online or by calling us at (205) 265-1880. We are here to serve you.

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