• Key point. While employers may not have a duty to provide a reference about a former employee, if they choose to do so they may be liable if they fail to disclose information suggesting that the individual may pose a risk of harm to others.
• Key point. Persons who are mandatory reporters of child abuse under state law may be personally liable for injuries that may result from their failure to report.
In a decision of extraordinary significance to churches, a California appeals court ruled that the former employers of a teacher who molested an adolescent girl were liable for his actions because they provided his current employer with positive references despite their knowledge of previous misconduct. 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 court noted that “the duty to use reasonable care in giving information applies more broadly when physical safety is involved.” Relying heavily on section 311 of the Restatement of Torts (an authoritative but nonbinding legal treatise), the court observed:
While mere nondisclosure is generally not [a basis of liability], our law has long recognized that although one may be under no duty to speak as to a matter, if he undertakes to do so, either voluntarily or in response to inquiries, he is bound not only to state truly what he tells but also not to suppress or conceal any facts within his knowledge which materially qualify those stated. If he speaks at all he must make a full and fair disclosure ….
The recommendation letters [in this case] come within the rule discussed …. [They] recommended [the teacher’s] employment in future educational positions. None of the letters expressly limit their statements [sic] to [the teacher’s] teaching or administrative abilities. Instead, they offer opinions about some of his personal qualities …. Each of the letters made an unqualified recommendation for [the teacher’s] employment in other school positions ….
In our opinion the facts allegedly known by [the prior schools] but not disclosed in the recommendation letters, “materially qualify” the facts disclosed about [the teacher’s] conduct at the [three] schools and render the letters misleading half—truths. [The former schools] voluntarily took it upon themselves to represent to prospective employers that [the teacher] was not merely qualified for an administrative position in a school setting, but that he would be a desirable hiree for such a position. [A] statement that contains only unfavorable matters and omits all reference to unfavorable matters is as much a false representation as if all the facts stated were untrue. It hardly need be stated that the facts not disclosed by [the schools] would likely have a bearing on the suitability of his employment on other school campuses.
The court also agreed with the victim that the principals of the three schools that provided letters of recommendation were liable for her injuries because of their failure to file a report of child abuse as required by state law. The court concluded that the principals were mandatory child abuse reporters under California law, that they had sufficient knowledge that abuse had occurred, and that they were civilly liable for injuries resulting from their failure to report.
What is the significance of this case to other churches and church leaders? Consider the following:
(1) It indicates that church employees may be sued if they fail to disclose damaging information in letters of recommendation they provide on former workers. The court suggested that employers are not required to respond to requests for letters of recommendation, and even if they do so they can limit their remarks (for example, by restricting their comments to specific characteristics, or confirming dates of employment). But if they choose to describe a person’s general qualities and fitness, or offer an unqualified endorsement, then they have an affirmative duty to disclose facts indicating that the person poses a risk of harm to others. Churches that are concerned about liability for disclosing harmful information can obtain a signed release from the applicant.
(2) Church leaders in California who are mandatory child abuse reporters under state law may be personally liable for failing to report known or reasonably suspected cases of child molestation. While this case is not binding in any other state (or in other appellate districts within California), it may be relied upon by other courts wanting to reach the same conclusion.
(3) The court acknowledged that it found only two other cases addressing the same issue, and one of those cases rejected the court’s conclusion that the writers of letters of recommendation can be liable for harm that results as a result of their failure to disclose harmful information.
(4) A dissenting judge noted that the court’s decision implied that “every letter of recommendation ever written which mentioned no negative characteristic of the applicant would constitute a false representation except in those rare instances in which the applicant had no unfavorable characteristic to mention …. The majority opinion could have far—reaching consequences. A letter of recommendation written years before any alleged inappropriate behavior may be used to hold the writer accountable.” The dissenting judge insisted that if “a potential employer wishes to ask the author whether the job applicant has any known negative habits or behavioral tendencies, the potential employer can contact the author and ask the author. Authors of letters of recommendation are not, and never have been, insurers of the integrity and occupational effectiveness of the persons those authors recommend for employment.” Randi W. v. Livingston Union School District, 49 Cal. Rptr.2d 471 (Cal. App. 5 Dist. 1995). [ Negligent Selection as a Basis for Liability]
© Copyright 1996, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m61 m65 c0696