In a blow to employers, the California Supreme Court has ruled that three school districts can be sued for giving enthusiastic job references that left out a vice-principal’s history of alleged sexual misconduct with students. This decision highlights the risks of giving reference letters, even when everything you say is positive.
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Job References Didn’t Mention Sexual Misconduct
Before becoming a vice-principal at Livingston Middle School near Fresno, Robert Gadams had been employed by three other California school districts. Officials from each district provided him with glowing recommendations.
One said Gadams had created “a safe, orderly and clean environment for students and staff” and recommended him “without reservation.” Another stated that it “would recommend him for almost any administrative position he wishes to pursue.” And the third district noted his “genuine concern” for students and declared that it “wouldn’t hesitate to recommend Mr. Gadams for any position!”
None of the letters, however, disclosed Gadams had been accused of sexual misconduct with students while employed at each of the three districts. They also failed to mentionhe was allegedly forced to resign from two of the jobs because of his misbehavior.
Relying on these references, Livingston Middle School hired Gadams as a vice-principal. But a few months later, Randi W., a 13-year old female student at the school, charged Gadams sexually molested her. Gadams ultimately pleaded guilty to a criminal charge of unlawful touching.
Student Sues Former Employers
Randi W. sued Gadams’ three former employers. She contended that their failure to reveal his record of sexual misconduct in their references constituted fraud and misrepresentation.
In response, the school districts argued they weren’t legally required to warn prospective employers, or students, of Gadams’ alleged wrongdoing.
Full Disclosure May Be Required
The California Supreme Court, in reviewing the case, made clear that you don’t have to give job references or disclose information about former employees. But once you provide some information, you become obligated to reveal all other facts that qualify or limit what you’ve said-if those facts suggest there is a danger of physical harm to prospective employers or others.
In this case, the court found that the positive statements about Gadams’ character in the reference letters were deceptive because the districts were alleged to have knowingly concealed facts regarding his purported sexual misconduct. And, the districts should have foreseen that the omission of this information could result in physical injury to someone.
Consequently, the court rejected the districts’ request to dismiss Randi W’s case and allowed her to proceed to trial.
Avoiding the Catch-22
This case makes it clear that if you provide a job reference and don’t disclose information that the worker presents a safety risk, you could find yourself entangled in a very expensive lawsuit should someone end up getting injured. But revealing negative information about a worker-even when you think the statements are true-puts you at risk of a defamation suit by the employee.
Here’s how to stay out of this legal quicksand:
- Be careful when omitting negative information. If you do give a reference, you can leave out negative information, such as poor performance, as long as the omission isn’t misleading and those excluded facts don’t put the prospective employer or anyone else at risk of physical harm.
But it’s not always easy to know which facts suggest that an employ- ee might injure someone and which don’t. For example, if a former employee was accused of sexual harassment while working for you, that may or may not indicate the worker could end up causing physical harm to someone at a new job. The risk could depend on factors such as the nature of the harassment charges, their apparent validity, etc.
In such cases, it’s best not to give any reference at all. This protects you from claims that you should have disclosed the sexual harassment allegations, as well as complaints by the employee of defamation.
Note that the court said you’re on safe ground if you give a reference that leaves out facts suggesting that the employee could cause economic, rather than physical harm. For example, if you write a letter for a former bookkeeper that fails to mention the employee fouled up your computers, you won’t be liable if the person causes financial losses to a new employer.
- Adopt a bare-bones job reference policy. The safest approach is to confirm only job title and dates of employment, and give out this information only with the worker’s written consent. This will eliminate the risk of trouble with prospective employers and third parties for failing to reveal negative information. And, it will shield you from liability to the former employee.
- Use caution with reference letters in problem situations. Sometimes, as part of a settlement or difficult termination, a departing employee asks for a positive letter of reference even though they’re leaving under a cloud-such as pending harassment complaints. Although it can be tempting to accommodate the request to smooth the departure, in the long run it might be better to refuse.
Finally, the U.S. Supreme Court has just issued a new ruling that also deals with references for ex-employees. See News Notes for details.
For more tips on job references for dangerous workers, see CEA October 1995.