Locke Lord QuickStudy: References: A Treacherous Slope

Locke Lord LLP
November 28, 2017
A recent opinion of federal Judge Timothy Hillman sends a message to employers in Massachusetts that providing references on behalf of former employees is a dangerous practice.

In Soni v. Wespiser et al, Judge Hillman found that references provided by supervisors regarding a former employee are encompassed by claims of discrimination and retaliation under both Title VII of the Civil Rights Act of 1964 as well as Massachusetts General Laws, Chapter 151B.

Judge Hillman’s opinion is significant in two other respects.  He found that providing references may give rise to defamation claims (in this case, where an individual defendant reportedly offered that the plaintiff “would be trouble  . . .  because she had filed multiple lawsuits against other hospitals . . .”)  and he ruled that references may be a privilege of employment when an employer customarily provides them.

In light of the pitfalls of providing references to former employees as manifest in Judge Hillman’s ruling, we continue to recommend that, absent compelling circumstances, employers only confirm positions held, and dates of hire and departure.