Las Vegas POA

Employer Can Be Liable For Discriminatory Bad Job Reference

Written on 04/30/2021
Will Aitchison

While Nickolas Forrest was employed with the police department in Haltom City, Texas, officers and supervisors began mocking his religion. Forrest is a member of The Church of Jesus Christ of Latter-day Saints, commonly referred to as the Mormon Church. He reported the problem to higherups. Shortly thereafter, the Department assigned an internal affairs officer to investigate Forrest for misconduct – namely lying to a superior officer about whether he collected a damage estimate from a witness at the scene of a traffic collision.

The investigator concluded that the allegations of misconduct were unfounded. There was evidence that, contrary to regulations, the police chief pressured the investigator to change his findings and deem the allegations “sustained,” but the investigator refused. Nonetheless, Forrest was terminated on the basis of the alleged misconduct. The Department initially listed his discharge as dishonorable, but Forrest challenged that determination, and an administrative law judge overturned the determination and ordered that Forrest’s discharge be listed as honorable.

Forrest filed a religious discrimination complaint with the Texas Workforce Commission. The parties entered a settlement in which Haltom City agreed to pay Forrest nearly $30,000. Haltom City further agreed that whenever it received an employment inquiry regarding Forrest, it would process the inquiry through Haltom City Police Department’s human resources department, which was to provide only neutral, nondisparaging information regarding title, salary, and dates of employment.

Forrest then applied for a position with Round Rock Police Department. As he progressed through the interview process, he disclosed that Haltom City had fired him for alleged misconduct, though Forrest said he had successfully challenged the allegations in a lawsuit. He signed a written form that would allow Haltom City PD to provide Round Rock PD with files concerning his work record.

Round Rock PD contacted Haltom City PD for an employment reference. Instead of processing the inquiry through the human resources department, the call was routed to Sergeant Eric Peters. Peters provided false information about Forrest: that he had been investigated twice (rather than once) and that as a result, he had been fired for confirmed misconduct (rather than that the allegations had been deemed unfounded). Round Rock PD’s internal documents show that the next day, it removed Forrest from consideration, citing the conversations with Peters.

Forrest sued Haltom City, alleging that the Department provided a disparaging job reference. Forrest alleged that in doing so, the City: (1) retaliated against him; and (2) breached the terms of its prior settlement agreement. When a trial court denied the City’s motion to dismiss the lawsuit, the City challenged the decision in the Texas Court of Appeals.

The Court allowed the lawsuit to proceed. The City argued that it did not take a “materially adverse employment action” against Forrest. The Court disagreed, reasoning that “materially adverse means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.

“Under both Texas and federal law, a false or negative employment reference may constitute adverse employment action. Under Texas law, an employer’s actions might be considered adverse if it would materially affect the party’s ability to obtain outside employment, and that is potentially true of a false or negative employment reference. Likewise, under parallel federal law, it is well established that a false or negative employment reference may qualify as an adverse employment action.

“The issue is whether a hypothetical reasonable employee, if she found out that retaliation in the form of negative employment references were being used as a stick to keep employees from exercising their rights under Title VII, would be dissuaded from filing a charge of discrimination. It is an unremarkable proposition to state that they would. Employment references are often the key to obtaining a job, and a negative reference can guarantee that a prospective employee does not obtain a position. Clearly, knowing that one would receive a negative reference for complaining about discrimination could dissuade a person from making the charge in the first instance.”

City of Haltom City v. Forrest, 2021 WL 733057 (Tex. App. 2021).

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