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  •   Court Protects Ex-Employees From Retaliation

    By Joan Biskupic
    Washington Post Staff Writer
    Wednesday, February 19, 1997; Page A06


    The Supreme Court ruled yesterday that employers may not write bad job references or otherwise retaliate against former employees to punish them for filing job discrimination complaints.

    Federal anti-discrimination law prohibits companies from retaliating against anyone who brings a job bias complaint. But until yesterday, courts were split on whether that protection extended to workers who already had been let go.

    Civil rights advocates asserted that the ruling from the high court helps ensure that victims of discrimination will not be reluctant to file a complaint against an employer that fires them for fear that the company will seek revenge. But the reality of the workplace, business groups say, is that the decision will force employers to think twice about giving any negative review – even one that is warranted – to a former worker who had filed a discrimination complaint.

    Yesterday's unanimous decision is of particular importance to workers and companies in Maryland and Virginia. It immediately reverses the stance of the 4th U.S. Circuit Court of Appeals, covering those states and three others, which had ruled that ex-employees were not protected against bad references or other retaliation by former bosses.

    "The court has substantially strengthened the protections that workers in the 4th Circuit have against retaliation for complaining" about job bias, said University of Washington law professor Eric Schnapper, one of the lawyers who represented the Maryland man whose case was decided by the court yesterday.

    But Ann Reesman, general counsel at the Equal Employment Advisory Counsel, said the decision "is going to continue to make employers more cautious about the content of references they give. It's more likely to limit what employers say to name, rank and serial number."

    Yesterday's case involved Charles T. Robinson of Jessup, Md., who claimed Shell Oil Co. fired him from his sales job because he is black. While Robinson's race discrimination lawsuit was pending, he applied for a position at Metropolitan Life Insurance Co. When the company asked Shell for a reference, the oil giant gave Robinson the lowest possible ratings and said it would not rehire him.

    Robinson then filed a second job discrimination claim against Shell, saying the company was retaliating against him for the first complaint. The 4th Circuit said Robinson could not sue Shell because he no longer was its employee.

    Yesterday, the Supreme Court reversed that opinion and broadly interpreted the anti-retaliation provisions of Title VII of the 1964 Civil Rights Act, which forbids "an employer to discriminate against any of his employees or applicants for employment" who have filed job discrimination charges. The critical question was whether the term "employees" included former workers.

    The Equal Employment Opportunity Commission had submitted a "friend of the court" brief, saying that if former employees were not protected, they "would be chilled from taking action to report or oppose discrimination."

    Yesterday the court agreed. Justice Clarence Thomas, EEOC chairman for much of the 1980s, wrote for the court, "EEOC quite persuasively maintains that it would be destructive to [the purposes of anti-bias law] for an employer to be able to retaliate with impunity." The ruling also protects witnesses who would bolster a claim of discrimination from retaliation.

    Thomas acknowledged in Robinson v. Shell that the statute as written was ambiguous about whether the term "employees" covers former employees but said, after reviewing the language and purpose of the law, it was meant to be inclusive.

    Richard T. Seymour of the Lawyers Committee for Civil Rights Under Law said yesterday's decision, combined with other recent rulings, sends a message to employers: "Stop thinking that there is refuge in technical loopholes. It is time to start living up to the obligations of the law."

    Robinson eventually lost his original race discrimination case. Allen M. Lenchek, who argued for Robinson at the high court, said Robinson has a new job at a new company.

    Shell's lawyer, L. Chris Butler, was not available for comment yesterday, but in arguing the case told the justices that Congress had intended to limit claims of retaliation to actions taken during employment. He had said that if the 4th Circuit's position were overturned, disgruntled former employees could sue former employers over employment references even if the references are true.

    © Copyright 1997 The Washington Post Company

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