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A Negative Job Reference Can Lead to a Claim of Retaliation

Providing negative job references could constitute unlawful retaliation in violation of the Americans With Disabilities Act (ADA), the Family Medical Leave Act (FMLA) and similar anti-discrimination laws. In Male v. Tops Markets, LLC, a federal court in New York ruled in favor of a former employee, who claimed that the company provided negative job references in retaliation for her having filed an earlier discrimination lawsuit. She claimed that in response to a question from a prospective employer regarding what kind of employee she had been, and would be, the former employer responded that she was a good employee the first couple of years, but thereafter began having personal problems that spilled over into her professional life, and missed and was late for work because of her personal and medical issues.

The court ruled the former employee’s allegations were sufficient to support a claim of unlawful retaliation against her former employer. It also stated the alleged comment regarding her “medical issues” created a reasonable inference that the former employer was referring to her absences which she allegedly took under the FMLA or because of her alleged disability. Other courts, including the United States Supreme Court, have previously held that a negative reference also can support a claim of retaliation under Title VII of the Civil Rights Act of 1964. The EEOC’s Compliance Manual notes that unlawful retaliation can occur even after the employment relationship has ended.

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