“I wouldn’t hesitate to recommend him for any position!”
Most of us can’t imagine using those words in relation to an employee fired for sexual harassment, let alone acting as that individual’s reference. But that’s almost exactly (the difference being the employee’s name in place of the word “him”) what a California school official wrote about a former teacher whom he knew had engaged in improper sexual conduct with students. The official wound up being one of several defendants on the losing side of a notable court case, Randi W. v. Muroc Joint Unified School District, in which the California Supreme Court ruled that “unreserved and unconditional praise for [a] former employee … despite defendants’ alleged knowledge of complaints or charges of his sexual misconduct with students, constituted misleading statements that could form the basis for tort liability for fraud or negligent misrepresentation.”
In non-judge-speak, that means you might get into trouble for providing an unabashedly glowing reference for someone accused of harassment. What’s an employer to do instead? Is there any way to prevent future harassment without necessarily blacklisting every alleged offender?
Law professor Jessica A. Clarke tackles these and other “sticky legal and moral questions” in a recent Harvard Business Review article. Using the case above as one example, Clarke explains that there are many factors that play into an employer’s decision to disclose—or not disclose—information about an individual’s history of harassment:
“An employer might decide that the evidence of sexual misconduct is ambiguous and that the best course of action is to convince the accused employee to resign. In exchange for a voluntary resignation, the employer might agree to keep the allegations confidential. Victims may also want confidentiality.
Even if there is no confidentiality agreement, employers may keep silent to avoid defamation suits brought by accused employees. This is despite the fact that employers usually win defamation and other such cases so long as they act in good faith and tell the truth. Many states even have laws that give employers immunity from suit for job references. In one case, a court held an employer was not liable for giving a bad reference, even though the employer had accidentally provided false information. But it is a hassle to be sued, even if you win. So lawyers may advise employers it is best not to give bad references.”
However, Clarke writes, refusing to give bad references—or to give any information whatsoever to a prospective employer—“is morally questionable in cases in which an employee is likely to go on to commit sexual harassment, misconduct, or assault again.” As with so many issues related to workplace harassment, there may not be a perfect, universal solution, and the best way to avoid liability is to ensure harassment doesn’t happen in the first place.
For more sticky legal and moral questions related to harassment—and for legal answers to those questions—be sure to check out our Anti-Harassment Initiative Best Practices webinar.