Key Point 8-24. A reference letter is a letter that evaluates the qualifications and suitability of a person for a particular position. Churches, like other employers, often use reference letters to screen new employees and volunteers. Churches often are asked to provide reference letters on current or former workers. The law generally provides employers with important protections when responding to a reference letter request. However, liability may still arise in some cases, such as if the employer acts with malice in drafting a reference letter.
A "reference letter" is a letter that evaluates the qualifications and suitability of a person for a particular position. There are a number of important legal issues associated with the use of reference letters, and some of them are addressed in this section.
A. Requesting Reference Letters as a Screening Device
The use of reference letters when hiring employees and selecting volunteer workers is becoming an increasingly common church practice, since it is a way for churches to reduce the risk of liability for "negligent selection" of employees and volunteers. The use of reference letters in screening workers is addressed in chapter 10 of this text.
B. Responding to Reference Letter Requests
Many churches have been asked to provide reference letters on a current or former employee or volunteer. Unfortunately, such letters can expose a church to legal liability if not handled properly. While liability ordinarily is associated with negative information disclosed in a reference letter, it also may arise because of positive references. Both kinds of liability are addressed in this section.
Some churches, like many secular employers, refuse to respond to any reference request, other than to confirm the fact that a person worked for the church and the dates of employment or volunteer service. While such an approach certainly reduces if not eliminates a church's liability for providing an inappropriate reference, it does so in some cases at the risk of exposing innocent people to potential harm. To illustrate, assume that First Church dismisses Bill as a volunteer children's worker because of inappropriate sexual contact with children. Bill applies for a similar position at Second Church. Second Church asks First Church for a reference letter describing Bill's suitability for working with children. The pastor and board at First Church refuse to respond because of a fear of legal liability. Within a few months, Bill molests four children while acting as a volunteer worker at Second Church. Are the pastor and board members of First Church morally responsible, at least in part, for the molestation of the four children? Many church leaders would answer yes to this question. As a result, many church leaders have a desire to share information about former employees or volunteers with other churches when asked to do so, even if that information involves inappropriate behavior.
While it is possible for churches to be sued, and found liable, for information contained in reference letters that they provide to other churches or employers, there are precautions that church leaders can take to reduce this risk. Several of these precautions are addressed in the following paragraphs.
liability for providing negative references
Church leaders often are reluctant to provide a reference letter containing negative information because of a fear of legal liability. Some churches and secular employers have been sued by former employees or volunteers because of negative information shared in a reference letter. Liability generally is based on defamation, the infliction of emotional distress, or "interference with contract."
Case study. An employee of a church-affiliated college was terminated for not returning a paycheck that had been inadvertently issued to him for a time period in which he had performed no services. The employee applied for work at a local business as a security guard. A company supervisor called the college's personnel department for a reference. A supervisor in the personnel department responded to the reference request with laughter, and then advised the caller that the former employee "has a problem of dishonesty concerning money." Because of this negative reference, the company decided not to hire the individual. He later sued the college for slander and "interference with business relations." A Massachusetts appeals court concluded that the college was liable under these circumstances. This case illustrates the legal risks that one assumes in providing negative references to other employers. This is particularly so when "opinions," as opposed to statements of fact, are expressed.  St. Clair v. Trustees of Boston University, 521 N.E.2d 1044 (Mass. App. 1988).
Many courts and legislatures have recognized a number of legal defenses that are available to employers when responding to a request for a reference letter. These defenses include the following:
Employers cannot be liable for defamation when the information shared in a reference letter is true. Of course, to qualify for this defense, an employer must limit its reference letter to assertions of fact that are verifiable through documents or the testimony of witnesses. Truth is not an absolute defense to claims of emotional distress and interference with contract, but it certainly makes such claims less likely to succeed.
(2) qualified privilege
In many states, employers are protected by a "qualified privilege" when giving references on former employees. This qualified privilege generally prohibits an employer from being guilty of defamation unless the former employee can prove that statements of fact given by the employer in a reference letter were false, and made with malice. Malice in this context generally means that the employer either knew the statements were false, or made them with a reckless disregard as to their truth or falsity. Note that not all states recognize the qualified privilege. As a result, employers should not make potentially defamatory statements about former employees without the advice of a local attorney.
The concept of qualified privilege was described by one court as follows:
One who in the regular course of business is asked by a prospective employer … for information concerning a person, is entitled to the defense of qualified privilege if his reply would otherwise be regarded as defamatory. … The qualified privilege serves an important public function in the employment context. Without the privilege, references would be even more hesitant than they are to provide candid evaluations of former employees. In order to overcome the qualified privilege, the plaintiff must show that the statements were made with malice. Once a communication is deemed privileged, the burden of proof to demonstrate malice rests with the plaintiff. To show malice, the plaintiff must show either that the statements were made with knowing falsity, in bad faith, or with reckless disregard of the truth. Hargrow v. Long, 760 F. Supp. 1 (D.D.C. 1991).
Several states have enacted legislation incorporating the concept of qualified privilege as a matter of law. Such statutes typically protect information shared by employers in reference letters, unless the information is shared with malice.
• A New York court ruled that disparaging statements made by a minister about a member of his congregation when asked by a prospective employer for a reference were not defamatory because they were protected by a qualified privilege and had not been made with malice. Sborgi v. Green, 722 N.Y.S.2d 14 (Sup. Ct. 2001). A woman sued her minister for defamation as a result of a reference he provided on her behalf to a prospective employer (a college affiliated with her church). The minister informed an employee of the college's personnel department that the woman was an "unstable person" and that "her children are disturbed." The court ruled that these statements were not defamatory since they were protected by a qualified privilege. Many courts have concluded that the law should encourage members of churches and other organizations to share with each other about matters of common interest without undue concern about being sued for defamation. As a result, many courts have ruled that church members are protected by a qualified privilege when sharing with other church members about matters of mutual concern or common interest. This means that such communications cannot be defamatory unless made with "malice." Malice in this context means that the person who made the allegedly defamatory remark knew that it was false, or made it with a reckless disregard as to its truth or falsity. The court concluded that statements made by the minister to the college personnel department were protected by the qualified privilege based on a common interest, and that the minister had not been guilty of malice and therefore his comments were not defamatory. It concluded: "Such statements were protected by a qualified privilege, the issue being whether plaintiff's allegations of malice are sufficient to overcome the privilege, i.e., sufficient to permit an inference that defendant acted out of spite or ill will, with reckless disregard for the statements' truth or falsity, or with a high degree of belief that [his] statements were probably false. They do not…. While the statements were frank, the expressions used were not beyond what was necessary for the purposes of the communication, both speaker and listener having a common interest in plaintiff's character and fitness as a prospective teacher and promoter of their faith, or otherwise so vituperative as to warrant an inference of malice…. Suspicion, surmise and accusation are not enough to infer malice."
• A federal court in the District of Columbia threw out a lawsuit brought by a worker against his former employer for allegedly defamatory references given to prospective employers. Id. The worker was employed as a bookkeeper for a secular company. His employment was marked by difficulties with fellow employees. Without explanation or advance notice, the worker quit his job. He later applied for another job, and the prospective employer sought references from the former employer. One supervisor stated that the worker was "wholly incompetent" and "not eligible for rehire." Another supervisor stated that the worker was "undesirable as a candidate for rehire," and that he had "personality conflicts" with coworkers. The worker sued his former employer, and these supervisors, for defamation on the basis of these statements. The defendants asked the court to dismiss the case, and the court did so. It emphasized that all of the allegedly defamatory statements were protected by a "qualified privilege" which it defined as follows: "One who in the regular course of business is asked by a prospective employer … for information concerning a person, is entitled to the defense of qualified privilege if his reply would otherwise be regarded as defamatory…. The qualified privilege serves an important public function in the employment context. Without the privilege, references would be even more hesitant than they are to provide candid evaluations of former employees. In order to overcome the qualified privilege, the plaintiff must show that the statements were made with malice. Once a communication is deemed privileged, the burden of proof to demonstrate malice rests with the plaintiff. To show malice, the plaintiff must show either that the statements were made with knowing falsity, in bad faith, or with reckless disregard of the truth." Applying this standard, the court concluded that the former employer and supervisors were protected by the qualified privilege with regard to information they shared in their references, and that the former worker had the burden of proving that the reference statements were made with malice. The court concluded that the former worker had produced no evidence to demonstrate that any of the statements had been made with malice.
Current or former employees and volunteers who are adults can release a church from liability associated with information disclosed in a reference letter. As noted above, it is advisable to obtain such a release before issuing a reference letter that will contain negative information. Ideally, a release form should require the person's signature to be made before a notary public. At a minimum, a release form should require the signer's signature to be witnessed by one or two other persons whose signatures appear on the form.
Case study. A Texas appeals court ruled that a "release form" signed by an employee prevented her from suing a former employer for statements it made about the employee to a prospective employer. An employee who had been terminated by her employer applied to another employer for a job. The new employer had the employee sign a form entitled "authorization for release of information." This form provided, in part: "I hereby authorize any investigator … bearing this release to obtain any information from schools, residential management agents, employers, criminal justice agencies, or individuals, relating to my activities. This information may include, but is not limited to, academic, residential, achievement, performance, attendance, personal history, disciplinary, arrest, and conviction records. I hereby direct you to release such information upon request to the bearer. … I hereby release any individual, including record custodians, from any and all liability for damages of whatever kind or nature which may at any time result to me on account of compliance or any attempts to comply, with this authorization." The prospective employer contacted the former employer as part of its background check of the employee, and was informed about her negative job performance. On the basis of this information, the prospective employer declined to hire the individual. She promptly sued the former employer for defamation, and a jury awarded her $1 million in damages. The former employer appealed this verdict. A state appeals court reversed the jury's verdict, and ruled that the former employer should pay the employee nothing. The court noted that statements made by a former employer to a prospective employer about a former employee are protected by a "qualified privilege." This ordinarily means that such statements cannot be the basis for defamation unless they are made with "malice." The court concluded, however, that the statements made by the former employer in this case were protected by an absolute privilege because of the release form signed by the former employee, and accordingly it was impossible for the employee to sue her former employer for defamation. Smith v. Holley, 827 S.W.2d 433 (Tex. App. 1992).
interference with contract
In many states, one who interferes with an existing contract between two other parties can be sued for "interference with contract." To illustrate, assume that a church dismisses a pastor for adultery. The pastor is later hired by another church. After a few months, a denominational official learns of the pastor's new job, and contacts the board members of the new church to inform them of the pastor's previous misconduct. As a result of this unsolicited disclosure, the church board decides to terminate the pastor's employment. The pastor may be able to sue the denominational official for interference with contract. Note that this basis of liability requires the existence of a contract. If the church had asked the denominational official for a letter of reference prior to the date the pastor was hired, there can be no interference with contract. The timing of a letter of reference is critical. If it comes before the prospective employee is hired, there can be no interference with contract. If it comes after the employee is hired, there may be liability.
• The Alaska Supreme Court ruled that a denominational official in the Presbyterian Church (USA) could be sued on the basis of interference with contract for making disparaging comments about another minister who recently had been hired by a local church. Marshall v. Munro, 845 P.2d 424 (Alaska 1993). A Presbyterian minister left a pastoral position in Alaska and accepted a call as minister of a Presbyterian church in Tennessee. When he presented himself to the church to begin his duties, he was informed by church officials that because of derogatory information the church had received from a denominational official (an executive presbyter in Alaska), the church would not hire him. The presbyter had informed church leaders that the minister was divorced, dishonest, unable to perform pastoral duties because of throat surgery, and that he had made an improper sexual advance to a church member in Alaska. The minister sued the presbyter for intentional interference with his employment contract with the Tennessee church. Generally, one who intentionally interferes with a known contract can be sued for damages. The state supreme court concluded that the civil courts can make this determination without any inquiries into internal church discipline. The court drew an important distinction between clergy who are seeking a pastoral position and those who have been hired. If a church official makes derogatory remarks about a minister who already has been hired by a local church, and if those remarks induce local church leaders to terminate the employment agreement, then the church official can be sued for "interference with contract." The court insisted that such claims ordinarily will not involve inquiries into core ecclesiastical issues. This suggests that church officials should be more cautious in making remarks about clergy who already have been hired by a local church or other religious organization.
• A Louisiana court suggested that it could not resolve a priest's claim that a church official was guilty of interference with contract as a result of the contents of a letter of reference. Hayden v. Schulte, 701 So.2d 1354 (La. App. 1997). A Catholic priest who had been accused of molesting a child was investigated by church officials. He later filed a lawsuit claiming that a church official interfered with his employment prospects as a Navy chaplain as a result of a letter of reference that referred to "some accusations of questionable behavior and some complaints about [the priest's] ministry." The church official insisted that the letter of reference pertained to the fitness of the priest for assignment to a chaplaincy position—a matter beyond the reach of the civil courts. The court did not address this issue directly, but seemed to acknowledge that internal communications among clergy or church leaders regarding the fitness of a minister cannot give rise to civil liability.
• A New Jersey court ruled that a church acted properly in dismissing its music director for criminal acts. McGarry v. Saint Anthony of Padua Roman Catholic Church, 704 A.2d 1353 (N.J. Super. 1998). After working for the church for a few months, the music director was arrested for possession of illegal anabolic steroids. It was later disclosed that the music director had been taking steroids to assist him with bodybuilding, and that he had ordered several shipments of steroids shipped directly to the church to avoid detection. The music director was dismissed, and later applied to another church for similar employment. His application was rejected when the church contacted the previous church and was informed by the pastor of what had happened. The music director sued his former church, alleging breach of contract. He also claimed that the pastor, by informing the other church of the music director's criminal activities, had wrongfully "interfered with his prospective economic advantage." The trial court dismissed the music director's assertion that the church had wrongfully interfered with a "prospective economic advantage." It noted that the music director could not show that "there was an intentional, without justification, interference" with his economic advantage. Further, the court pointed out that the pastor had disclosed the information only after it was requested, and the information was of criminal conduct admitted by the music director and covered in the newspaper. Additionally, the pastor was protected by a "qualified privilege" for employment references, meaning that he could not be liable unless his reference contained information that the pastor knew to be false.
liability for refusing to respond to a request for a reference letter
It is a fundamental principle of law that there can be no liability for a failure to protect another from harm or peril. As one court observed: "One human being, seeing a fellow man in dire peril, is under no legal obligation to aid him, but may sit on the dock, smoke his cigar, and watch the other fellow drown." Evans v. Ohio State University, 680 N.E.2d 161 (Ohio App. 1996). This principle means that a church cannot be liable for failing to warn another church of the dangerous propensities of a former employee or volunteer. To illustrate, if Jack molests children at First Church while serving as a volunteer worker, and later begins working as a volunteer children's worker at Second Church, First Church is under no legal obligation to warn Second Church of Jack's dangerous behavior. There are practical reasons for this rule. After all, the leadership of First Church cannot be expected to hire an investigator to track Jack down and find out every church that he attends.
Some courts have created a limited exception to the general rule of no liability for a failure to warn others of a former worker's dangerous propensities. If a "special relationship" exists between church leaders and a potential victim, then the church has a legal duty to warn the potential victim of the dangerous propensities of an employee or volunteer. This exception was recognized in the following case study.
• The Wisconsin Supreme Court unanimously ruled that a church does not have an affirmative duty to warn future employers that one of its ministers had molested several boys. The court concluded: "We decline to rule that under the general duty of ordinary care recognized in Wisconsin, an employer may be found negligent for failing to warn unforeseen third parties of a dangerous former employee. Such a ruling would extend an employer's obligation to warn indefinitely into the future to a sweeping category of persons, thereby requiring employers to warn nearly all potential future employers or victims, as the plaintiffs in this case argue. … A decision to the contrary would create precedent suggesting that employers have an obligation to search out and disclose to all potential subsequent employers, which could include in an employment context every school in the country or beyond, all matters concerning an exemployee's history. … The primary public policy problem with recognizing the claim as presented by the plaintiffs is that there is no sensible stopping point to recognizing negligence claims for such an open-ended and ill-defined sweeping claim. Recognizing the plaintiffs' claim against the Diocese in this case could result in requiring all employers to warn all unforeseen potential future employers of any number of problems related to any number of past employees. It could further result in all parents who become aware that their child was sexually abused then facing potential liability for not warning every other parent who might also have children at risk of being in contact with the perpetrator."
• A Washington state court ruled that a church and a member of the church board could be sued by three women who had been molested by a volunteer youth worker when they were minors. Funkhouser v. Wilson, 950 P.2d 501 (Wash. App. 1998). The board member had received information indicating that the worker was a child molester, but failed to disclose this information for 23 years. Because of the board member's failure to disclose this information, the molester was able to molest the sisters over a period of several years. The court found that the church had a "special relationship" with minors that imposed upon it a duty to protect them from the criminal and intentional acts of others. The court acknowledged that "as a general rule, there is no legal duty to protect another from the criminal acts of a third person." However, there is an exception if a "special relationship" exists between a church and a potential victim which imposes upon the church a duty to "protect" the victim from harm. The court concluded that a special relationship exists between churches and children who participate in church programs and activities: "[W]e believe that churches and the adult church workers who assume responsibility for the spiritual wellbeing of children of the congregation, whether as paid clergy or as volunteers, have a special relationship with those children that gives rise to a duty to protect them from reasonably foreseeable risk of harm from those members of the congregation whom the church places in positions of responsibility and authority over them."
The conclusion reached by the court in the previous case study is extraordinary. It exposes church leaders to liability for failing to protect children against "reasonably foreseeable risks of harm" by volunteer or paid youth workers. Note that the victims in the case study were members of the same church as the molester.
But what if the molester began attending a different church? Would church leaders at the former church have a legal duty to warn the second church of the molester's dangerous propensities? Probably not. It is doubtful that the court would have concluded that a "special relationship" existed between the former church and children in the second church that would give rise to a duty to protect them from the molester by notifying the church of his dangerous behavior.
liability for providing positive references
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. The cases are summarized in the following two examples.
• The Texas Supreme Court ruled that a local Boy Scout council could be liable for a scoutmaster's acts of child molestation because it was aware of rumors suggesting that the scoutmaster had engaged in inappropriate behavior with boys but still recommended him to a leadership position in a local troop. Golden Spread Council, Inc. v. Akins, 926 S.W.2d 287 (Tex. 1996). The court concluded 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 scoutmaster. Further, the council's "affirmative act of recommending [the molester] as a potential scoutmaster … 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 concluded: "[W]e recognize that there is no way to ensure that this type of conduct will never happen, despite an organization's 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 council's] liability."
• The California Supreme 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 his previous misconduct. Randi W. v. Muroc Joint Unified School District, 60 Cal. Rptr.2d 263 (Cal. 1997). 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. One of the letters of recommendation stated that "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." In fact, each of the principals was aware of prior incidents or reports of sexual misconduct by the teacher. They all failed to disclose the teacher's misconduct in their letters of recommendation. Unfortunately, the teacher sexually molested a 13-year-old girl (the victim) shortly after beginning his new assignment. 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 three principals (and their schools) insisted that "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. 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 employee's "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 school's] request, and, accordingly, the privilege is inapplicable." 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 victim's 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 the general rule: "[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 teacher's] repeated sexual improprieties." 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."
• An Ohio court ruled that a church was liable for a former pastor's rape of a minor in another church since it had recommended him for a pastoral position despite knowledge of at least two incidents of child molestation. Simpkins v. Grace Church, 16 N.E.3d 687 (Ohio App. 2014).
Churches should be careful to treat as confidential any reference letter they receive on a current or former employee or volunteer worker. In some states, employees have a legal right to inspect their personnel records, but this right does not extend to reference letters that may be in their personnel file. See, e.g., MINN. STAT. § 181.961 (employees can inspect their personnel records, but the term "personnel record" does not include "written references respecting the employee, including letters of reference supplied to an employer by another person").