Vol. 8, No. 6, Pg. 32. Job References: Title VII Joins Defamation as Employer Concern in South Carolina.

• Author: By Sarah B. Boucher

South Carolina Lawyer

1997.

Vol. 8, No. 6, Pg. 32.

Job References: Title VII Joins Defamation as Employer Concern in South Carolina

32Job References: Title VII Joins Defamation as Employer Concern in South CarolinaBy Sarah B. BoucherOn February 18, the U.S. Supreme Court unanimously reversed the Fourth Circuit and held that Title VII applied to a former employee of Shell Oil who claimed the company gave his prospective employer a negative reference in retaliation for his having filed an EEOC charge shortlyafter he was fired. Robinson v. Shell Oil Co., 117 S.Ct. 843 (1997).

34The Fourth Circuit had reasoned that the plain language of Title VII's anti-retaliation provision, § 704(a) (42 U.S.C. § 2000e-3(a)), applied only to current employees because an "employee" is defined for all provisions of Title VII as "an employee employed by an employer." 42 U.S.C. § 2000e(f). Robinson v. Shell Oil Co., 70 F.3d 325, 329 (4th Cir. 1995). The Fourth Circuit was the only circuit, out of seven that had considered the issue, to bar retaliation claims by former employees.

In reversing, the Supreme Court concluded that the term "employees" in the anti-retaliation provision is ambiguous because neither that provision nor Title VII's definition of an employer contains a temporal qualifier. Construing § 704(a) in light of other sections of Title VII, Justice Thomas explained: "Insofar as § 704(a) expressly protects employees from retaliation for filing a 'charge' under Title VII, and a charge under § 703(a) alleging unlawful discharge would necessarily be brought by a former employee, it is far more consistent to include former employees within the scope of 'employees' protected by § 704(a)." 117 S.Ct. at 848.

SCOPE OF TITLE VII PROTECTION FOR FORMER EMPLOYEES IN JOB REFERENCE CONTEXT

Neither the Supreme Court nor the Fourth Circuit in Robinson addressed the scope of a former employee's protection from retaliation under Title VII. The Seventh Circuit, however, held that Title VII protects former employees from retaliation "that impinges on their future employment prospects or otherwise has a nexus to employment." Veprinsky v. Fluor Daniel, Inc., 87 F.3d 881, 891 (7th Cir. 1996).

Similarly, the Third Circuit applied Title VII to protect former employees from any retaliatory act that "arises out of or is related to the employment relationship." Charlton v. Paramus Bd. of Ed., 25 F.3d 194, 200 (3rd Cir.), cert. denied, 115 S.Ct. 590 (1994). This article examines only employer conduct that may be considered retaliatory in the job reference context. Other conduct, such as refusal to rehire a former employee, may also state a claim under § 704(a). Veprinsky, 87 F.3d at 892-93.

Advising a prospective employer that a current or former employee filed a discrimination charge is one form of retaliatory conduct in violation of Title VII. Id. at 894 (summary judgment precluded where employer disclosed plaintiff's EEOC charge to placement firm that then declined to submit resume to prospective employers). Such a disclosure may alone constitute sufficient evidence of retaliation for an employee to prove a claim under § 704(a).

In Rutherford v. American Bank of Commerce, 565 F.2d 1162 (10th Cir. 1977), the court affirmed judgment for a former employee who alleged the defendant retaliated by disclosing her pending sex discrimination charge to a prospective employer. The court discounted as "self-serving" the prospective employer's testimony that the reason it did not hire her was unrelated to the fact that she had filed charges against her former employer. Id. at 1164.

Less clear cut is the situation where an employer does not disclose information about a discrimination charge but gives a negative reference or refuses to provide any reference. If the negative reference provides false information, a retaliatory motive may readily be inferred.

If a...