Some companies have formal policies on how to respond to reference requests.  Other companies lack such policies, and exercise little control over the process.  A recent federal court case from New York illustrates the problem with such a loose approach.  There, the plaintiff, Julie E. Male, sued her former employer, Tops Markets, LLC, for employment discrimination and retaliation.  One of her claims alleges that Tops Markets retaliated against her by providing a negative reference.

Male had taken FMLA leave while working for Tops Markets, and was later terminated.  She applied for more than 100 jobs, but apparently landed none.  She claims that a Top Markets manager informed one of her prospective employers that Male "missed and was late to work a lot because of her personal and medical issues."

Tops Market moved to dismiss that claim.  But, the trial court denied the motion to dismiss, and allowed the claim to go forward.  The court stated:  "While the statement that Plaintiff took absences due to her personal and medical issues may have been true, if Plaintiff can prove the Defendant made such a statement to a prospective employer in retaliation for the Plaintiff's exercising her rights under the FMLA or the ADA, such a statement may violate the anti-retaliation provisions of the ADA, FMLA..."

The lesson for employers here is to develop formal reference policies which limit the information the company will provide in response.  For example, cautious companies allow only HR to respond to reference requests, and  provide no information beyond the employee's dates of employment.  While such a policy renders reference checks close to meaningless, it is unfortunately the prudent approach.