Liability for Giving Positive References

[ Defamation, Invasion of Privacy, Failure to Report Child Abuse, Negligent Selection as a Basis for Liability]

Article summary. Church staff members occasionally are asked to provide a reference on a former employee or volunteer. Sometimes these references are provided over the telephone while in other cases they are provided in writing. Two recent state supreme court rulings address an important question-can persons who provide such references incur any legal liability for doing so? The courts reached the same conclusion-persons who know of information about a former worker that makes him or her a risk of harm to others may be liable for giving an unqualified “positive” reference that omits any information regarding the workers prior misconduct or potential risk of harm. This feature article fully reviews these historic cases, and evaluates their relevance to churches.

In two historic cases that will be of direct relevance to churches, the supreme courts of Texas and California have ruled that individuals and their employers face potential legal liability for providing positive and unqualified references on former workers who they know pose a risk of harm to others. In both cases, positive references were provided on individuals with a known background of sexual misconduct involving minors. The molesters were hired on the basis of these references, and they later molested other minors in the course of their new duties. Both courts ruled that persons who provide positive references under these circumstances, without any disclosure of the negative information, are legally responsible for the harm the worker inflicts on others. It is essential for church leaders to be familiar with both of these rulings. While they apply only in the states of Texas and California, it is likely they will be followed in other states. This article summarizes the facts of both cases, reviews the courts’ rulings, and evaluates the impact and relevance of both cases to other churches and ministries.

In the summer of 1987, a 6th—grade boy (the victim) began spending the night at his best friend’s home. The friend’s parents were experiencing marital difficulties, and were not living together. When the victim spent the night with his friend, only the father was present. On at least four occasions the father sexually molested the victim. The victim later discontinued seeing his friend, and the acts of molestation ceased.

A few months later the boy began attending meetings of a local Boy Scout troop and discovered that the molester was an assistant scoutmaster and that his friend was a member of the troop. Shortly after joining this troop, the victim informed other scouts about the details of his molestation by the assistant scoutmaster. Some of the other scouts disclosed that the assistant scoutmaster had “tried the same thing with them.” The victim did not tell the head scoutmaster about the molestation, but the scoutmaster could tell that something was wrong. The scoutmaster shared his concerns with a Boy Scout official, informing him that “they had heard there was some kind of situation between [the assistant scoutmaster] and … some of the boys.” The official could not recall later whether or not the scoutmaster mentioned sexual molestation. The official prepared a written report of this conversation that he shared with his superior (a Boy Scout executive with a regional council). The report stated that the scoutmaster “had heard a boy say that [the molester] was messing with some boys.”

A few months later a district scout commission recommended the molester as a potential head scoutmaster for a new troop that a church wished to sponsor. The scout official who was informed of the problems involving the victim did not make the district commission aware of what he knew about the molester because (1) at least some of the members of the commission already knew or the allegations, and (2) he considered the matter to be based on unfounded rumors. The new troop was established a short time later and the troop committee selected the molester as head scoutmaster. No one informed the church of the rumors about the molester. A few months later, the molester persuaded the victim to join the new troop. The molester immediately resumed his efforts to molest the victim. On one occasion, he informed the victim that a physical examination would be needed to attend summer camp, and he took the victim to a restroom where he “demonstrated” what would happen during the examination. On another occasion, the molester invited the victim to his home to discuss summer camp, and again molested him. The molester was later charged with several counts of molestation. He was found guilty and sentenced to 25 years in prison.

The victim’s mother sued the national Boy Scouts organization (BSA) as well as the local council. She alleged that both the BSA and local council were responsible for her son’s injuries on the basis of their negligent failure to properly screen, train, and supervise the molester and for their failure to remove the molester from his position as a scoutmaster. A trial court dismissed the lawsuit, but a state appeals court reversed this ruling. The case was then appealed to the state supreme court.

BSA

The Texas Supreme Court concluded that the national BSA organization was not liable for the scoutmaster’s acts of child molestation. The court observed:

Here it is undisputed that BSA had no knowledge of any allegations of sexual abuse by [the molester] before his selection as scoutmaster [of the new troop]. BSA keeps a list of people reported to them as unfit for leadership, and BSA will refuse to commission a person on the list as a troop leader. [The molester] however was not on BSAs unfit list, and BSA had no way of knowing of [his] past history with [the victim] or any other boys. Thus [his] actions were not foreseeable to BSA. In addition, to place a duty on BSA to screen adult volunteers about whom it had no knowledge and over whom it has little or no control would be a tremendous burden. There are about 130,000 units nationwide run by approximately 1,300,000 adult volunteers. Therefore, under these facts, we hold that the BSA had no duty to screen an adult volunteer about whom it had no knowledge and over whom it had no right of control.

The court also rejected the victims claim that BSA was liable for the local councils negligent selection and supervision of the molester. It noted that the local council was a “separate corporate entity from BSA” and that “BSA has no right to control [the councils] activities.” The court acknowledged that “to carry out its programs in certain geographical areas, BSA charters local councils … to have jurisdiction over a set area.” However, “each local council is a separate nonprofit corporation with its own articles of incorporation, bylaws, and board of directors. Thus, as a practical matter, BSA has no direct control over [the local councils] day—to—day activities.”

The local council

The court ruled that the local council could not be responsible for the victims injuries on the basis of negligent hiring, since it did not hire the scoutmaster. But it dropped a bombshell by concluding that if the council knew or should have known that the molester was “peculiarly likely to molest boys,” it had a duty not to recommend him as a scout master. By recommending him, the council could be liable for the injuries he caused. The court noted that the local council was aware of complaints that the molester was “messing with” some boy scouts and was concerned that they might be serious. Only a few months later, a local church asked an employee of the local council to recommend a scoutmaster for a new troop that was forming in a church. The employee, with full knowledge of the prior allegations, recommended the molester to the church. He did not disclose the concerns the council had concerning the molesters suitability for working with minors.

The court considered several factors in deciding that the council had a legal duty not to recommend someone whom it knew (or should have known) would pose a risk of harm to children. These included the following:

(1) Foreseeability. By recommending the molester as a new scoutmaster, the council and its employee should have foreseen that they were creating an unreasonable risk of harm to others. Such foreseeability “weighs heavily” in favor of imposing a duty on the council.

(2) Likelihood of harm. The court concluded that the “risk and likelihood of injury are high in this case.” It noted that the Boy Scout Handbook informs all scouts that their troop leader carries out his duties because “he likes boys and wants to help them become real men” and that a troop leader is “a friend to whom you can always turn for advice.” The court concluded that “by introducing a person about whom doubts had been raised to a church knowing that the church would likely put that person in a position of trust with young boys, [the council] could be found to have actually increased the risk and likelihood of injury in this case.”

(3) Social utility of the councils conduct. The court conceded that the “social utility” (i.e., public benefit) of the Boy Scouts is high.

(4) Magnitude and consequences of imposing a duty. The court concluded that the magnitude of any burden on the local council to refrain from recommending unsuitable leaders was minimal. It noted that the council was

not obligated to investigate [the molester] on its own, or to risk liability for defamation by publishing the information it had received [concerning the molester]. If [the council] should have known from the information it received … that there was an unreasonable risk that [the molester] would molest boys, [it] simply should not have recommended [him] to the church sponsor of [the new troop].

(5) Child abuse reporting law. The court noted that the Texas legislature has “voiced a strong policy to protect children from abuse” by requiring the reporting of incidents of child abuse.

(6) Superior knowledge and a right to control. Other factors the court considered in imposing a duty on the council not to recommend an unsuitable leader were “whether one party has superior knowledge of the risk or a right to control the actor whose conduct caused the harm.” The court concluded that both of these factors supported the imposition of a duty in this case: “Although [the council] did not control the everyday activities of its chartered organizations and scoutmasters, it certainly was not obligated to recommend [the molester] …. [The council] might well have prevented [the molester] from being scoutmaster simply by not recommending him to the church.”

Viewing all of these factors together, the court concluded that the council owed a legal duty to the church that sought a recommendation concerning a new scoutmaster, and that this duty extended to the children and parents associated with the troop who relied on the council in selecting a scoutmaster who was fit to serve. Further, the local councils “affirmative act of recommending [the molester] as a potential scoutmaster to the church created a duty on the part of [the council] to use reasonable care in light of the information it had received.” It continued: “[W]e hold that if [the local council] knew or should have known that [the molester] was peculiarly likely to molest boys, it had a duty not to recommend him as a scoutmaster.”

The court cautioned that it was imposing no other duty on the council, and that the council “had no duty to investigate [the molester] on its own or to divulge to the church … or others the information it had received [concerning the molester]. [The councils] only duty was to exercise reasonable care, based on the information it received, in recommending scoutmasters.”

The court concluded:

[W]e recognize that there is no way to ensure that this type of conduct will never happen, despite an organizations best efforts. However [the local council] and similar organizations deal with children. The public has a strong interest in protecting children from abuse, and parents put their trust in such organizations. Having undertaken to recommend a potential scoutmaster for the church, [the council] had a duty to use reasonable care in doing so to prevent an unreasonable risk of harm to [the victim] and others who would be affected. [The council] breached that duty if it knew or should have known that [the molester] was peculiarly likely to molest boys. On this record, this is the issue determinative of [the councils] liability.

The court sent the case back to the trial court to determine whether or not the council in fact “knew or should have known” that the molester was “peculiarly likely to molest boys.” If the trial court determines that the council had such knowledge on the basis of the rumors it had hears about the molester, then it may be found legally responsible for providing an unqualified reference without disclosing the molesters potential risks.

What is the significance of this case to other churches? Obviously, the decision by the Texas Supreme Court has limited effect. It will not be binding on any court outside of the State of Texas. Nevertheless, the decision represents an extended discussion of the liability of charities for making unqualified recommendations of persons whom they know (or should know) pose a risk of harm to others, and accordingly it may be given special consideration by other courts. For this reason, the case merits serious study by church leaders in every state. With these factors in mind, consider the following:

1. The duty not to recommend. The most important aspect of the court’s opinion was its conclusion that if the local Boy Scouts council knew or should have known that the molester was peculiarly likely to molest boys, it had a duty not to recommend him as a scoutmaster. The important point for church leaders to note is that this same principle could easily apply to them. Churches, like the Boy Scouts, work extensively with children, and it is common for churches to be asked for a reference on a former worker. Sometimes, the church knows of information suggesting that a former worker would be unsuitable for working with children. If so, this case suggests that the church may be liable for recommending the worker to another church.

2. No duty to investigate. The court emphasized that the local council had no duty to investigate the suitability of the molester for working as a scoutmaster. Its duty was simply not to recommend him if it knew (or should have known) of information suggesting that he would not be suitable for working with children. The court noted that the council “had no duty to investigate [the molester] on its own.” There is a paradox here. A duty not to recommend someone arises if a church knew or should have known that the individual was likely to harm others. But how can a church know if it “should have known” an individual poses a risk of harm to others without conducting some form of investigation? The court simply noted that the local Boy Scouts councils “only duty was to exercise reasonable care based on the information it received in recommending scoutmasters.” Presumably, this means that there is no duty to independently investigate a person for whom a reference is requested, though a church has a duty not to recommend the person if it knows (or if it should have known on the basis of information available to it without an independent investigation) that the person presents a risk of harm to others.

3. No duty to disclose negative information. The court stressed that while the local council had a duty not to recommend the molester as a scoutmaster, it did not have to risk liability for defamation by disclosing the basis for its refusal not to recommend him. It noted that the council “had no duty … to divulge to the church sponsor of [the troop] or others the information it had received [about the molester].” Further, the court insisted that the council “was not obligated … to risk liability for defamation by publishing the information it had received.”

4. The relevance of rumors. One of the more troubling aspects of this case is that the local council did not have actual knowledge that the molester posed a risk of harm when it recommended him as a scoutmaster of the new troop. What evidence did the council actually have regarding the molester? Lets review the evidence:

(1) The victim confided in other scouts that the scoutmaster had molested him.

(2) One of these other scouts told his father, who was a scout leader, who in turn informed a council employee that there were allegations that the scoutmaster had been “messing with some boys.” The council employee was not informed that the allegations concerned sexual molestation.

(3) The council employee informed his superior of the allegations, and he was instructed to investigate further. The employee later informed his superior that the family of the boy who allegedly overheard the victims accusations regarding the scoutmaster was involved in a “family feud” with the scoutmasters family. He also informed his superior that the boy who overheard the victims accusations referred to the victim as a “known liar.”

Based on this evidence, the council determined that the allegations regarding the scoutmaster were unfounded, and no further investigation was conducted.

At best, this evidence is highly questionable. The council was aware of vague accusations against the scoutmaster without any mention of sexual molestation, and it determined that these accusations came from a boy who was a “known liar” and whose family was engaged in a “feud” with the scoutmasters family. Yet, the Texas Supreme Court concluded that this evidence was sufficient to place the council on notice that the scoutmaster was “peculiarly likely to molest boys” and therefore it had a duty not to recommend him. As one justice pointed out in a dissenting opinion, “spreading rumors about child molestation can result in the undeserved destruction of an individuals reputation.” Yet, the court’s decision “virtually mandates the dissemination of unconfirmed reports of child molestation.”

5. Incidents of child molestation cannot be eliminated. The court acknowledged that “there is no way to ensure that this type of conduct will never happen, despite an organizations best efforts.” This is a candid and realistic appraisal. However, the court went on to conclude that organizations that recommend persons to work with minors have a duty to use reasonable care in doing so to prevent an unreasonable risk of harm to others. This duty is breached if the organization knew or should have known that the person it recommends “is peculiarly likely to molest boys.”

6. Negligent hiring. The court refused to find the local council liable for negligent hiring since it did not hire the molester. Rather, it simply recommended him as a scoutmaster to a church that was organizing a new troop.

7. Liability for the acts and obligations of affiliated organizations or ministries. The court concluded that the national BSA organization was not liable for its local councils activities. The court based this conclusion on the following considerations:

• BSA had no knowledge of any allegations of sexual abuse by the molester before his selection as scoutmaster.

• BSA keeps a list of people reported to it as unfit for leadership, and BSA will refuse to commission a person on the list as a troop leader. The molester was not on BSAs unfit list, and BSA had no way of knowing of his past history with the victim or any other boys. As a result, his actions were not foreseeable to BSA.

• Placing a duty on BSA to screen adult volunteers about whom it has no knowledge and over whom it has little or no control would be a tremendous burden. There are about 130,000 units nationwide run by approximately 1,300,000 adult volunteers.

• The local council was a “separate corporate entity from BSA” and BSA “has no right to control [the councils] activities.” The court acknowledged that “to carry out its programs in certain geographical areas, BSA charters local councils … to have jurisdiction over a set area.” However, “each local council is a separate nonprofit corporation with its own articles of incorporation, bylaws, and board of directors. Thus, as a practical matter, BSA has no direct control over [the local councils] day—to—day activities.

This aspect of the court’s decision will be useful to denominational agencies that conduct scouting programs and other ministries.

8. Concurring opinion. One judge filed a concurring opinion that deserves comment. This justice would have ruled that the Texas child abuse reporting statute, which makes any person a mandatory reporter who has “cause to believe” that a child has been abused, should be interpreted to impose civil liability on any person who fails to report child abuse (for those injuries occurring after a failure to report). The court did not respond to this opinion.

A teacher was employed by a public school based in part on the glowing letters of recommendation from the principals of three schools in which he had previously been employed. Unfortunately, the teacher sexually molested a 13—year—old girl (the victim). The victim later sued the three prior schools and their principals, claiming that they were responsible for her injuries because they were aware of prior incidents of sexual misconduct involving the teacher but failed to disclose this information in their letters of recommendation.

The first school. School officials in the first school (a junior high school) were aware that the teacher hugged female students, placed his arms around female students, kept female students alone with him in his classroom after school, had been involved in “sexual situations” with more than one female student, gave back massages to female students while he was alone with them in the teachers lounge, and made sexual remarks to female students. Despite this knowledge, the principal of the school provided the teacher with a letter of recommendation that said in part: “I am privileged to write a letter of recommendation on behalf of [the teacher]. He is dedicated, hard—working, dependable, reliable, and more importantly, he possesses a strong desire to excel …. [His] biggest asset, however, is the genuine concern towards the students …. He is enthusiastic, energetic and has outstanding rapport with everyone …. I wouldn’t hesitate to recommend [him] for any position!” The letter contained no reference to sexual misconduct.

• The second school. School officials in the second school (a high school) were aware that the parents of some students had complained that the teacher made sexual overtures and remarks to students, and that his actions toward students had “sexual overtones.” School officials forced the teacher to resign on account of these charges. Nevertheless, in his letter of recommendation, the principal noted: “[The teacher’s] enthusiasm, organization and pleasant personality consistently generated a student waiting list …. [He] sets high standards and has the ability to achieve them …. I would recommend him for almost any administrative position he wishes to pursue.” The letter contained no reference to sexual misconduct.

• The third school. School officials in the third school were aware that the teacher had been asked to resign following charges of sexual harassment of female students and allegations regarding offensive and sexual touching of female students and sexually suggestive remarks. Despite this knowledge, the principal’s letter of recommendation on behalf of the teacher stated: “[The teacher] is an upbeat, enthusiastic administrator who relates well to the students …. Due in large part to [his] efforts, our campus is a safe, orderly and clean environment for students and staff …. I recommend [him] without reservation.” The letter contained no reference to sexual misconduct.

A state appeals court ruled that the three prior schools and their principals were responsible for the victim’s injuries as a result of their “negligent misrepresentation” in failing to disclose the prior incidents of sexual misconduct in their letters of recommendation. The schools appealed the case to the state supreme court.

The supreme court concluded that the three principals and their schools could be legally responsible for the victims injuries on the basis of fraud or negligent misrepresentation if

(1) the principals and schools owed the victim a “duty of care”

(2) the principals and schools breached this duty by making misrepresentations or giving false information in their letters of recommendation concerning the teacher, and

(3) the employing schools reliance on these letters caused the victims injuries

The court concluded that all three conditions were met. Its reasoning is summarized below.

Duty of care

The court concluded that the three principals and their schools owed the victim a duty of care. It based this conclusion on the following considerations.

(1) Foreseeability of harm. The court concluded that the three principals should have foreseen that a child could have been molested as a result of their unqualified endorsements of the teacher. Specifically, they should have foreseen that school officials would rely on their letters of recommendation in hiring the teacher; that had they not given the school an unqualified endorsement of the teacher he would not have been hired; and, that after being hired, he might molest a student.

(2) Moral blame associated with the principals conduct. Another factor the court considered in deciding whether or not the principals (and their schools) owed the victim a duty of care was the “moral blame” associated with their conduct. The court concluded that “their unreserved recommendations of [the teacher] together with their failure to disclose facts reasonably necessary to avoid or minimize the risk of further child molestations or abuse, could be characterized as morally blameworthy.”

(3) Availability of insurance. A third factor the court considered in deciding whether or not the principals (and their schools) owed the victim a duty of care was the availability of insurance. The court concluded that that schools standard business liability policies covered incidents of negligent misrepresentation.

(4) Alternative courses of conduct. A fourth factor the court considered in deciding whether or not the principals (and their schools) owed the victim a duty of care was whether there were “alternative courses of conduct” available to them. The court concluded that the principals had at least two alternatives besides giving the teacher an unqualified endorsement, and that both would have eliminated any legal liability:

• a “full disclosure” letter revealing all relevant facts regarding the teachers background, or

• a “no comment” letter omitting any affirmative representations regarding the teachers qualifications, or merely verifying basic employment dates and details

The court noted that the victim cited no case or other legal precedent

suggesting that a former employer has an affirmative duty of disclosure that would preclude such a “no comment” letter. As we have previously indicated, liability may not be imposed for mere nondisclosure or other failure to act, at least in the absence of some special relationship not alleged here.

(5) Public policy considerations. A fifth factor the court considered in deciding whether or not the principals (and their schools) owed the victim a duty of care was whether or not there was a public policy supporting liability for persons who engage in negligent misrepresentation when providing letters of recommendation to prospective employers. The principals (and their schools) insisted that there was no such public policy, since “a rule imposing liability on writers of recommendation letters could have one very predictable consequence-employers would seldom write such letters, even in praise of exceptionally qualified employees.” The principals pointed out few persons will provide “full disclosure” of all negative information in reference letters since doing so would expose them to liability for defamation or invasion of privacy. This threat of liability will “inhibit employers from freely providing reference information,” and this in turn will restrict the flow of information prospective employers need and impede job applicants in finding new employment. The court referred to a number of articles in professional publications deploring the obstruction in the free flow of information that results from more and more employers using “no comment” letters in response to a request for a reference on a former employee.

On the other hand, the victim insisted that employers providing references on former employees are protected under California law by a “qualified privilege.” The qualified privilege renders employers immune from liability for their communications pertaining to a former employees “job performance or qualifications” so long as they do not act maliciously and provide the information “to, and upon request of, the prospective employer.”

The court concluded that this qualified privilege greatly reduces the concerns expressed by the principals (and their schools). The court went so far as to observe that the qualified privilege ordinarily would prevent liability in a case such as this involving negligent misrepresentations made by employers about a former employee. However, the court noted that the qualified privilege did not help the principals in this case since it applies only to communications made “upon request of” a prospective employer. The principals “do not claim that they wrote [their letters of recommendation] in response to [the schools] request, and, accordingly, the privilege is inapplicable.”

(1) “The writer of a letter of recommendation owes to prospective employers and third persons a duty not to misrepresent the facts in describing the qualifications and character of a former employee, if making these misrepresentations would present a substantial, foreseeable risk of physical injury to the prospective employer or third persons.”

(2) “In the absence, however, of resulting physical injury, or some special relationship between the parties, the writer of a letter of recommendation should have no duty of care extending to third persons for misrepresentations made concerning former employees. In those cases, the policy favoring free and open communication with prospective employers should prevail.”

Negligent misrepresentation

Having concluded that the principals (and their schools) owed the victim a duty of care, the court addressed the question of whether or not they breached this duty by making misrepresentations or giving false information in their letters of recommendation concerning the teacher. The court conceded that there is no liability for “nondisclosure,” meaning that an employer cannot be legally responsible for a victims injuries on the basis of its refusal to disclose information about a former worker. However, the court concluded that this case presented an exception to this general rule. It noted that the principal who wrote one of the letters of recommendation “extolled” the teachers “genuine concern” for and “outstanding rapport” with students, and recommended him for “any position” though he knew that the teacher had engaged in inappropriate physical contact with students. The second principal stated in his letter of recommendation that he would recommend the teacher for “any administrative position,” despite his knowledge that the teacher had resigned under pressure due to allegations of sexual misconduct. The third principal stated in his letter of recommendation that he recommended the teacher “without reservation,” and described the teacher as an “enthusiastic administrator who relates well with students,” despite his knowledge that the teacher was forced to resign as a result of sexual harassment charges involving students.

The court concluded:

[T]hese letters, essentially recommending [the teacher] for any position without reservation or qualification, constituted affirmative representations that strongly implied [the teacher] was fit to interact appropriately and safely with female students. These representations were false and misleading in light of [the principals] alleged knowledge of charges of [the teachers] repeated sexual improprieties. We also conclude that [the victims] complaint adequately alleged misleading half—truths that could invoke an exception to the general rule excluding liability for mere nondisclosure or other failure to act.

Reliance

Lastly, the court concluded that the principals letters of recommendation were relied upon by the school that hired the teacher. The court rejected the principals argument that the victim herself must have relied upon their letters of recommendation:

In a case involving false or fraudulent letters of recommendation sent to prospective employers regarding a potentially dangerous employee, it would be unusual for the person ultimately injured by the employee actually to “rely” on such letters, much less even be aware of them.

The court summarized its ruling as follows:

[W]e conclude that [the principals] letters of recommendation, containing unreserved and unconditional praise for [a former teacher] despite [their] alleged knowledge of complaints or charges of his sexual misconduct with students, constituted misleading statements that could form the basis for … liability for fraud or negligent misrepresentation. Although policy considerations dictate that ordinarily a recommending employer should not be held accountable for failing to disclose negative information regarding a former employee, nonetheless liability may be imposed if, as alleged here, the recommendation letter amounts to an affirmative misrepresentation presenting a foreseeable and substantial risk of physical harm to a prospective employer or third person.

What is the significance of this case to churches? Obviously, the decision by the California Supreme Court has limited effect. It will not be binding on any court outside of the State of California. Nevertheless, the decision represents an extended discussion of the liability of charities for making unqualified recommendations of persons whom they know (or should know) pose a risk of harm to others, and accordingly it may be given special consideration by other courts. For this reason, the case merits serious study by church leaders in every state. With these factors in mind, consider the following:

1. Liability for giving references. The court ruled that persons or organizations can be legally responsible for injuries occurring as a result of references they give if (1) they owe the victim a “duty of care”; (2) they breach this duty by making misrepresentations or giving false information in their letters of recommendation; and (3) the prospective employers reliance on the reference results in the victims injuries.

2. Other options. The California Supreme Court stressed that the principals had “alternative courses of conduct” available to them. In other words, they did not have to provide unqualified recommendations about the former teacher. The court noted that there are three options available to a person who is asked for a reference or recommendation on a former worker whom is known to have engaged in sexual or some other form of misconduct:

• option #1-negligent misrepresentation. Provide a positive and unqualified recommendation of the person, without any disclosure of the information you have indicating that he or she poses a risk of harm to others. This option may result in liability based on negligent misrepresentation if the worker is hired in part because of the recommendation and injures someone as a result of the same kind of misconduct.

• option #2-full disclosure. Provide a recommendation revealing all of the relevant facts regarding the workers background. While this option will avoid liability based on negligent misrepresentation, it may result in liability on the basis of other theories (including defamation, invasion of privacy, infliction of emotional distress, or breach of the duty of confidentiality). This is the very reason why employers often provide little if any information in response to a request for a reference on a former worker, and ironically it probably explains why the three principals in this case provided such positive recommendations concerning the teacher-they wanted to avoid liability for sharing negative information. The California Supreme Court addressed this concern directly, acknowledging that employers fear of being sued for providing negative (though true) references causes them to share little or no information about former workers, thereby impeding the free flow of information and allowing dangerous individuals to be hired without knowledge of the risk they pose. The court insisted that the state legislature addressed this concern by enacting legislation in 1994 providing employers with a “qualified privilege” for references they share. This legislation specifies that employers who share communications with other employers about a current or former employees job performance or qualifications for employment are protected from liability for what they share on the basis of a “qualified privilege” so long as: (1) they base their communications on credible evidence; (2) their communication is made without malice; and (3) the communication is provided “to, and upon request of, the prospective employer.” The court expressed the hope that this new law would “encourage more open disclosure of relevant information regarding former employees.”

There is another way for a church to reduce its risk of liability when sharing negative information about a former worker-inform the prospective employer that you will provide a reference only if you receive a release form signed by the former worker releasing your church (and anyone providing a reference) from liability for any reference you provide. This form also should consent to you providing the reference, and give the former worker the option of either waiving or not waiving the right to see the reference you provide.

• option #3-no comment. Provide the prospective employer with a “no comment” letter that either refrains from making any comment about the worker in question, or simply verifies basic employment dates and details. Many church leaders follow this course of action out of a fear of being sued if they choose any other option. This raises an interesting question-can a church be legally responsible for a persons injuries if it refuses to provide a reference on a former worker who it knew would pose a risk of harm to others? The California Supreme Court said “no”:

The parties cite no case or [statutory] provision suggesting that a former employer has an affirmative duty of disclosure that would preclude such a no comment letter. As we have previously indicated, liability may not be imposed for mere nondisclosure or other failure to act, at least in the absence of some special relationship not alleged here.

While a “no comment” letter eliminates the risk of liability for negligent misrepresentation, many church leaders feel strongly that they have a moral obligation to share information about a former worker who may pose a risk of harm to others. Fortunately, as noted above, the “second option” often can be used in a way that reduces risk.

3. Child abuse reporting. A state appeals court had ruled that the principals were responsible for the victims injuries on the basis of their failure to comply with their reporting duties under the state child abuse reporting law. The state supreme court disagreed with this conclusion. It noted that the duty to report extends to “child care custodians” (including school personnel) who have knowledge of or who observe a child “whom he or she knows or reasonably suspects has been the victim of child abuse.” The court observed:

Reasonably construed, the [child abuse reporting] act was intended to protect only those children in the custodial care of the person charged with reporting the abuse, and not all children who may at some future time be abused by the same offender. [The victim] fails to allege that she was ever in [the three principals] custodial care, or even that [they] were aware that [the teacher] had molested her.

To adopt [the victims] contrary argument would impose a broader reporting obligation than the legislature intended. Under [the victims] interpretation of the reporting act, a child care custodian that fails to report suspected child abuse affecting one child in its care or custody could be held liable, perhaps years later, to any other children abused by the same person, whether or not those children were within its custodial protection. Neither legislative intent nor public policy would support such a broad extension of liability.

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