I was recently asked to provide a reference for a former employee. He left on mostly good terms and I was happy to share that information with his new employer. The caller then asked what accommodations I had to make to this employee based on his disability (he has Down Syndrome). I answered the question, mentioning a few things I didn’t require this employee to do, because I was caught off-guard, but realize now I probably shouldn’t have answered so directly. Is there a protocol for this?
– Restaurant Manager, Minnesota
You are right to second-guess your response. Really the only reference questions you should answer are those related to whether the candidate was in fact your employee and during what time. Anything else, unless in the form of a positive recommendation letter that you are providing as a favor to a great employee, should be ascertained by the new employer without your help.
The real issue is that employees with disabilities are protected under the ADA. The new employer was likely operating with good intentions, trying to figure out the best way to structure a job for an employee who she or he wanted to bring on. But by asking the question, both you (since you answered) and the new employer potentially made this an ADA issue.
The problem would surface if the new employer did not like your answer and decided not to hire the employee based on that information. If a lawsuit or investigation arose later, your response could come into play as a factor. Imagine for example, that the candidate’s disability was less obvious and your response reveals not only the accommodations you made but confirmed that the disability, not yet disclosed by the employee, existed in the first place. Things would get messy fast if it could be alleged that the employee was not hired because of the disability, especially if accommodations were possible.
Michael Traud, a hospitality lawyer and professor at Drexel University in Philadelphia says, "Truth is always a defense to a defamation case but any legal entanglement could be avoided by simply stating that the employee worked at your facility and during what time frame. The more details given to a potential employer can lead to future legal issues."
Moving forward, hopefully this candidate will be happily employed for years to come. In the future, it is best to indicate that such information is part of the employee’s confidential file and you are not at liberty to share it. As always, consult your attorney to establish a clear policy on responding to reference checks.
More on reference check policies here.