Will California Follow Oregon and Hold That a Negative Employment Reference can be Unlawful Retaliation?

In a recent decision, the Oregon Supreme Court held that providing an employee with a negative employment reference can be considered unlawful “retaliation” under Oregon law. See McLaughlin v. Wilson, 365 Or 535 (Or. Supreme Court September 12, 2019). Oregon and California lawmakers tend to take notice of new laws made in each respective state. One wonders if this new legal precedent might soon be followed here in the Golden State. Employment law is constantly changing. It is essential for San Diego employers to retain an experienced San Diego corporate attorney to ensure that policies and procedures remain up to date.

In the McLaughlin case, the plaintiff — Nicole McLaughlin — worked at Hope Orthopedics as a medical assistant. McLaughlin worked closely with a certain orthopedic surgeon. While McLaughlin was employed, she applied to an MBA program at Willamette University. Initially, when asked, the orthopedic surgeon provided a glowing review of McLaughlin for her application to the MBA program. Subsequently, according to McLaughlin, the orthopedic surgeon began sexually harassing her and attempting to initiate sexual relations. At first, McLaughlin did not report the behavior for fear of retaliation. McLaughlin was accepted to the MBA program and announced that she would be leaving her employment at a certain point in the fall of 2013. The sexual harassment became worse after her announcement. By mid-2013, the behavior was severe enough that she reported the surgeon to the human resources department.

McLaughlin was placed on paid leave while her complaints were investigated. McLaughlin began her MBA program shortly thereafter without returning to work. Plaintiff’s complaints against the orthopedic surgeon were resolved in August 2013. However, five days later, McLaughlin learned that the orthopedic surgeon had contacted the MBA program and had told the admissions director that McLaughlin had “left her past two jobs by getting large amounts of money and a gag order.” The orthopedic surgeon said that he was concerned about McLaughlin manipulating male faculty members at the MBA program. Those statements were spread to others including the dean of the MBA program.

Eventually, McLaughlin sued Hope Orthopedics for various causes of action including unlawful employment retaliation. At the trial level, the court dismissed the claim for retaliation because the alleged retaliatory actions occurred after McLaughlin had left her employment with Hope Orthopedics.

However, as noted, the Oregon Supreme Court reversed. The Oregon statute at issue makes it an unlawful employment practice for “… any person to discharge, expel or otherwise discriminate against any other person because that other person … ” has made a claim or reported a claim of harassment or discrimination. The court focused on the words “otherwise discriminate” and concluded that, in this case based on the pleadings, McLaughlin had stated a potential claim for retaliation. The court held that there was a sufficient nexus to McLaughlin’s employment for a retaliation claim to exist even though the alleged behavior occurred after McLaughlin was no longer employed with Hope Orthopedics. The court noted that the post-employment statements/behavior were linked to during-employment statements/behavior since both involved the MBA program. The court also noted that there was a short temporal window — five days — between resolution of the sexual harassment claim and the alleged statements made to the MBA program admissions director. Taken together with a broad reading of the applicable statute, the court held that McLaughlin had stated a claim for retaliation. The matter was sent back to the trial court for further proceedings.

Legal lessons for San Diego employers: Be cautious with employment references and statements with respect to an employee’s future employment/education prospects. Although this case was decided in Oregon, there is a certain logic to it. Even post-employment actions might, under some circumstances, be considered unlawful retaliation.

Call San Diego Corporate Law Today

For more information, call corporate attorney Michael Leonard, Esq., of San Diego Corporate Law. Mr. Leonard’s law practice is focused on business, transactional, and corporate matters and he proudly provides legal services to business owners in San Diego and the surrounding communities. Call Mr. Leonard at (858) 483-9200 or contact him via email. Like us on Facebook.

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