Watch Out for the References Set-Up! 01-13-2004
- By Ann F. Kiernan, Esq.

Our Managing Within the Law instructors are often asked why most company policies forbid managers from giving references: "Why should we be worried about managers giving bad references? No employee would ever list someone who would say negative things, right?"

Wrong! As a December, 2003 federal appellate decision proves. Christopher Shaver, who had undergone brain surgery that left him with a metal plate in his head, was fired after he had an argument with his boss, Charles Bacon. Mr. Shaver had previously complained about being called "platehead" by coworkers, and he sued the company for disability harassment after his firing. During job interviews, Mr. Shaver gave Mr. Bacon as a reference. When contacted by prospective employers, Mr. Bacon said he could not recommend Mr. Shaver because he had "a get rich quick scheme involving suing companies." Mr. Shaver was not hired by anyone who spoke to Mr. Bacon, and got a job only when he gave the name of a different former supervisor as a reference. He then amended his harassment complaint to add a claim that Mr. Bacon's statements were unlawful retaliation.

The district court concluded that Mr. Shaver was attempting to manufacture a retaliation claim by baiting his former supervisor into giving negative references, and dismissed the claim. Not so fast, said the Eight Circuit Court of Appeals. There is no "manufactured claim" exception to the anti-retaliation provision of the Americans with Disabilities Act. Even though Mr. Bacon denied in his deposition that he had retaliated, and denied that what he said was a negative reference: "it is for a jury to decide whether Mr. Bacon is to be believed, whether his interpretation of events is consistent with the rest of the evidence, and whether his recommendations caused prospective employers to reject Mr. Shaver's applications."

What does this mean for managers?

• Follow company policy and refer all reference requests to Human Resources or other department, as required.
• Take all employee complaints about harassment seriously. Do not assume an employee has a bad motive for complaining.

Shaver v. Independent Stave Co., ___ F.3d ___, 2003 U.S. App. LEXIS 24180, (8th Cir. 2003)

Learn more about references in our training program Hiring the Best: Interviewing for Top Talent.

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.