NOVA Legal Beat: Former Employer Sabotaging Job Search?

Editor’s Note: This sponsored column is written by Mathew B. Tully of Tully Rinckey PLLC, an Arlington firm that specializes in federal employment and labor law, security clearance proceedings, and military law.

Q. What can I do if my former employer, against whom I filed a race discrimination complaint, is trying to sabotage my efforts to get a new job?

A. Most employers know, or at least they should know, that federal and state laws prohibit them from retaliating against employees for engaging in protected activities such as filing a discrimination lawsuit or a complaint or participating in an Equal Employment Opportunity Commission workplace investigation. But the fact that an employee no longer works for the employer, does not mean it can badmouth him or her with prospective employers.

Negative job references, along with other efforts to harm a former employee’s employment or employment prospects, can qualify as the type of retaliation prohibited by laws such as Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Virginia Human Rights Act. However, that does not mean employers are barred from giving a negative reference for a former employee. If the employee performed poorly and there is documentation saying as much, a negative job reference may be merited, as the 4th U.S. Circuit Court of Appeals noted in Harris v. Prince George’s County Pub. Sch. (1998).

Many employers will attempt to sidestep this issue by providing only basic information, such as dates of employment, when providing references. But a refusal to provide a post-employment job reference because of an employee’s prior protected activity could constitute unlawful retaliation, the 2nd U.S. Circuit Court of Appeals noted in Pantchenko v. C. B. Dolge Co. (1978).

Employers are also asking for trouble if they try to brand a former employee as a troublemaker by calling attention to an Equal Employment Opportunity (EEO) charge or discrimination lawsuit. As the U.S. District Court for the Eastern District of Virginia explained in Coles v. Deltaville Boatyard, LLC (2011), a former employer’s attempts to disparage others from employing a complainant would constitute actionable retaliatory conduct because it would dissuade “a reasonable worker from making or supporting a charge of discrimination… Certainly, an employee recently fired by one employer might be dissuaded from filing an EEOC charge for that termination if he knows that it would lead to a warning that he might do the same to subsequent employers.”

People who believe a former employer is retaliating against them for trying to protect themselves against discrimination should immediately contact an employment law attorney. Depending on the circumstances, an attorney could help them recover lost wages and compensatory damages for emotional distress caused by the former employer’s unlawful retaliation.

Mathew B. Tully is the founding partner of Tully Rinckey PLLC. Located in Arlington, Va. and Washington, D.C., Tully Rinckey PLLC’s attorneys practice federal employment law, military law, and security clearance representation. To speak with an attorney, call 703-525-4700 or to learn more visit fedattorney.com. 

The views and opinions expressed in the column are those of the author and do not necessarily reflect the views of ARLnow.com.