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The United States Supreme Court in Robinson v. Shell Oil Co. , unanimously held that the term “employees” as used in section 704(a) of Title VII of the Civil Rights Act of 1964 includes former employees. Therefore, employers may not retaliate against either current or former employees for their having engaged in activity protected by Title VII.

In 1991, the employer Shell Oil Company fired the plaintiff Charles Robinson Sr. Following his termination, Robinson filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) under Title VII, alleging that he was terminated because of his race. Before that charge was resolved, Robinson applied for a job with another company and Shell was asked to provide a reference. When Shell’s reference was negative, Robinson sued under Title VII claiming that Shell gave a negative reference to retaliate against him for bringing the EEOC charge. His claim was initially dismissed because the lower court held that Title VII covered only current employees. The Supreme Court disagreed and ruled that Title VII does protect former employees, such as Robinson, from retaliation.

While the Supreme Court had several reasons for reaching this decision, the most compelling reason was that a “primary purpose” of the anti-retaliation provisions of Title VII was to provide “unfettered access” to Title VII’s remedies. As the Supreme Court noted, “it would be destructive of this purpose… for employers to be able to retaliate with impunity” against former employees. The threat of post-employment retaliation might deter individuals from bringing discrimination complaints.

The Risks in References
The Robinson decision does not actually change the law for Connecticut employers because our local courts have long held that Title VII protects former employees. It does, however, highlight the risks a company faces if it provides more than minimal factual information when a reference is requested. Indeed, the risk of a Title VII retaliation lawsuit is far from the only danger. Each reference an employer gives opens the door to numerous potential tort claims, including defamation of character, negligent and fraudulent misrepresentation, and negligent and intentional infliction of emotional distress.

When these risks are combined with Connecticut’s personnel file statute (Conn. Gen. Stat. Sec. 32-128f), which limits the information an employer may or may not reveal from an employee’s personnel file, it becomes clear that employers should consider limiting their references to the employee’s term of employment, position held, and salary. While the Connecticut statute permits an employer to reveal more than these bare facts if the employee provides written authorization, to actually do so is fraught with danger.

Ultimately, the lesson of Robinson is that, when it comes to responding to requests for references: “employer beware!”