The Tenth Circuit has recently held that the “likely” effect of an employer’s negative job references constitutes a tangible harm – one of the elements an employee must prove to prevail on a retaliation claim under Title VII. Hillig v. Rumsfeld (2004).
Terrie Hillig had been employed by the Defense Finance Accounting Service (DFAS) in a clerical position for five years. On two occasions during her tenure, she claimed she was discriminated against and filed internal equal employment opportunity (EEO) complaints. The complaints were resolved internally and resulted in an upgrade in Hillig’s performance appraisal, expungement of negative information from her personnel files, and a retroactive promotion.
In March of 1998, Hillig applied for a position as Personnel Clerk/Assistant with the Department of Justice (DOJ). During her interview and further discussions with a DOJ personnel officer, Hillig was told that “she would be perfect for the position.” As part of the selection process, the DOJ contacted Hillig’s supervisors at DFAS for an employment reference. Despite the positive comments during the interview, Hillig was not hired. Rather, the DOJ hired a Caucasian female with no prior EEO activity. Hillig claimed the DOJ did not give her an offer as a result of negative references received from her former supervisors. An EEO investigation revealed that the DOJ was in fact provided with two negative evaluations by Hillig’s prior supervisors, one of which was considered by the investigator to be “very strong negative feedback.” Notwithstanding these negative references, the DOJ stated that Hillig was not given the job due to her long nails and that the references did not control its decision not to hire Hillig.
Hillig filed suit against DFAS alleging race discrimination and retaliation for filing internal complaints. Hillig’s claim of retaliation was found credible by a jury, which awarded her $25,000. The district court disagreed with the jury, holding that Hillig did not show she would have received the DOJ job if the negative evaluations had not been made and, therefore, Hillig could show no adverse employment action or tangible harm.
In reversing the district court, the Tenth Circuit held that Hillig did not have to show the loss of a specific job in order to meet the definition of an adverse employment action under Title VII. The court reasoned that an employer who retaliates should not be able to escape liability merely because the retaliation falls short of its intended result. Rather, according to the Tenth Circuit, Hillig need only show that the negative references carried a significant risk of humiliation, damage to reputation, and a concomitant harm to future employment prospects to be actionable. Finally, the Tenth Circuit held that the fact that the negative references were made orally was irrelevant to the determination of liability.
Employer Notes: This case reinforces the long-standing rule of most employers of providing neutral references. Employers must be particularly sensitive when making references regarding employees who have exercised protected rights. As in the above case, supervisors who retaliate can expose their employer to liability. As a result, all supervisors and managers should be trained on how to respond to reference requests.
Submitted by Beth Hinsdale, Principal, Grotta, Glassman & Hoffman P.A. You can contact Ms. Hinsdale at hinsdaleb@gghlaw.com.
Reprinted from Council’s Public Sector Personnel Law Update newsletter. To subscribe or order a free trial subscription, click here.
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