Fielding, Lawrence W.

Miller, Lori K.

Pitts, Brenda

English

ScholarWorks @ Georgia State University

Georgia State UniversityScholarWorks @ Georgia State UniversityKinesiology Faculty Publications Department of Kinesiology and Health1993Legal Concerns in Writing Job RecommendationsLori K. MillerLawrence W. FieldingBrenda PittsGeorgia State University, bpitts@gsu.eduFollow this and additional works at: https://scholarworks.gsu.edu/kin_health_facpubPart of the Kinesiology CommonsThis Article is brought to you for free and open access by the Department of Kinesiology and Health at ScholarWorks @ Georgia State University. It hasbeen accepted for inclusion in Kinesiology Faculty Publications by an authorized administrator of ScholarWorks @ Georgia State University. For moreinformation, please contact scholarworks@gsu.edu.Recommended CitationMiller, L. K., Fielding, L. W. & Pitts, B. G. (1993). Legal concerns in writing job recommendations. The Physical Educator, 50 (1),47-51.Legal Concerns in Writing Job Recommendations Lori K. Miller, Brenda G. Pitts, Lawrence W. Fielding Prospective employers of students routinely ask educators for references. As noted by Won-der and Keleman, educators are rated as a pre-ferred source of reference information. Letters of recommendation serve three significant pur-poses (Paetzold and Willburn, 1992; Von der Embse and Wyse, 1985; Webster, 1992). One, references verify application information pro-vided by the prospective candidate. The solic-ited reference ensures that the itemized de-gree(s), certifications, and experiences are accurate. Two, the pre-employment reference can reduce worker and third-party accidents. For example, it is influential for a school district to know if a candidate has a history of assaulting co-workers or children. A school district that fails to check references may be hiring a child abuser. The thoroughness of the employer's in-vestigative procedures is a determinant of liabil-ity (Carrel, Kuzmits, Elbert, 1992, p. 212). Three, thorough employment procedures facili-tate the hiring of competent, qualified individu-als. Proper hiring reduces business expenses as-sociated with employee turnover, absenteeism, recruiting and training. Literature cautions individuals about giving references (Daniloff, 1989). The pervasive fear in providing a reference letter hinges on defama-tion liability (Paetzold and Willburn, 1992). However, research indicates there are currently few legal cases in which a student has sued an educator alleging defamation via a reference. The identified cases are from the early twentieth century. Three reasons account for the dearth of Lori K. Miller, Lawrence W. Fielding, and Brenda G. Pitts are faculty members in the Department of Health, Physi-cal Education, and Recreation at the University of Louis-ville. cases. One, students are not aware of their legal rights. Students unfamiliar with the law may not know when individual rights have been vio-lated. Two, students often times are not in a fi-nancial position to pay the legal expenses associ-ated with a tort claim. Three, as noted by the U.S. Supreme Court, courts enter the educa-tional domain with extreme reluctance (Cannon V. University of Chicago, 1978). The lack of judicial precedent is one indication of cases which have proceeded beyond the district court level. Cases not published in state and federal reporters are not readily available for analysis. The tort of defamation requires the plaintiff to prove three primary criteria: 1) the commu-nicated statement must be false, 2) the statement must be communicated to a third party, and 3) the plaintiff must show that the defendant's commu-nication brought disrepute. Each criteria is exam-ined separately. Falsity of the Statement One criteria of a defamation action is that the communicated statement be false. Truth is an absolute defense. The defendant has the burden of proving that the statement is true (McGuire, 1989, p. 230). Defendants do have access to a "qualified privilege" defense. This "protects speech in ar-eas in which uncensored expression is an impor-tant public policy" (Daniloff, 1989). The quali-fied privilege allows an educator to make comments which may positively or negatively influence the prospective employer's hiring deci-sion. The free flow of information enhances effi-cient operations in a variety of ways. For exam-ple, prudent hiring reduces costs associated with employee turnover (e.g., hiring, screening, training). Society benefits since these costs are not passed to the consumer. However, the quali-fied privilege is not absolute. Courts recognize it only when educators make statements in "good faith" and for a legitimate purpose. Recommen-dations made maliciously and with a disregard for the facts are subject to liability (Daniloff, 1989; Fischer, Schimmel, and Kelly, 1987, p. 82). For example, in Lattimore v. Tyler Commercial College (1930), a prospective employer requested a reference letter about a former Tyler College student. The student alleged that the provider of the reference supplied a defamatory reference letter. The letter stated that the student: did not complete any of his work in our school and his record was very bad, indeed, while with us. In fact, to be plain with you, he was arrested and put in jail for stealing a type-writer. He was one of the most unsatisfactory students we ever had and we feel that you will be very much disappointed should you give him a place in your organization, p. 362 The Texas court stated that the provider of the reference was not granted a qualified privilege. In fact, the evidence indicated that the plaintiff had never taken a typewriter, was never ar-rested, and had never been put in jail. The fail-ure of the defendant to investigate the accuracy of his comments constituted malicious behavior. Judgment of the Court of Civil Appeals was re-versed in favor of the plaintiff. In a 1986 case {True v. Ladner), the Supreme Court of Maine found the reference provider had abused the qualified privilege. The plaintiff in this case applied for a position as a high school mathematics teacher. The search com-mittee selected True as the top candidate. The Superintendent later denied True employment after receiving a phone reference. The Superin-tendent stated: 1) True was a good mathematician, but not a good mathematics teacher; 2) True was "more concerned with living up to the terms of his contract rather than going the extra mile"; and 3) Ladner (the superintendent) did not feel True turned the students on. p. 260 The court held that the superintendent's com-ments were neither privileged nor discretionary. Furthermore, the court noted "there was ample evidence to support a finding of the falsity of the statement in question and Ladner's reckless dis-regard of its falsity." Communication to a Third Party Communicating information about a student to a prospective employer fulfills the second de-famatory criteria. A prospective employer may request information either orally or in a written format. The educator who responds to the re-quest is transmitting information about the stu-dent to a third party, the prospective employer. Closed conversations between only the educa-tor and student do not theoretically constitute "communication to a third party" since infor-mation is transferred only between two indepen-dent parties. Consequently, an educator may feel at liberty to verbally assault a student when no one else is around. However, courts are re-peatedly recognizing the concept of defamation by self-publication (Prentice & Winslett, 1987) which introduces liability when comments are communicated to a student in a private setting. The key issue is foreseeability. An educator could be liable for defamation if it is foreseeable that a student may have reason to repeat the in-formation at a later time. Communication to a third party occurs when the student repeats an educator's comments to a prospective employer. Consider the following situation. A female student applies for a job at a public elementary school. In an interview, the princi-pal requests that the student provide a written reference from her primary academic advisor. The student is fully aware that her relationship with her academic advisor is adversarial. In fact, the student vividly remembers her advisor belit-tling her beliefs and morals. Consequently, the student tells the principal that a favorable rec-ommendation from the advisor may not be re-ceived. The prospective employer may refuse to hire the applicant based on the derogatory ref-erence. The student has an action for defama-tion if she can prove that the advisor's reference was a significant factor regarding her failure to secure employment. Gommunication about a student among other faculty members and administrators has been subject to judicial scrutiny. Gonversation among those "who have a reason to know" is typically regarded as privileged communication since the perceived benefit of this communica-tion outweighs resultant individual harm (Duffy, 1983/1984). For example, it is appropri-ate for an educator to communicate the facts to campus police upon witnessing one student as-sault another. However, gossiping among faculty colleagues about the perceived psychotic propensities of the student falls outside the realm of a qualified privilege. Individual Disrepute The third criteria of a defamation claim deals with individual disrepute. The law of defama-tion strives to protect an individual's reputation (Daniloff, 1989). Any false statement communi-cated to a third party "that tends to hold the plaintiff up to hatred, contempt, or ridicule, or tends to injure the reputation of the plaintiff' is defamatory (McGuire, 1989, p. 230). For exam-ple, consider the following statement, "she is a good person, but not emotionally strong enough to withstand the rigors involved in being an ath-letic director." This statement has many infer-ences. One, the recipient of the information could conclude that the candidate is an emo-tional disaster. Two, the recipient could infer that the candidate lacks the confidence and as-sertiveness necessary to function successfully as an athletic director. Regardless, the initial state-ment reflects an opinion which may, or may not, be true. Implications of the Family Educational Rights and Privacy Act (FERPA) The 1974 F E R P A (a.k.a. Buckley Amend-ment) improved parent and student access to school records (Belo, Gastagnera, & Young, 1984; Greim, 1979). F E R P A gives all students and parents access to letters of recommendation placed in student files since January 1, 1975. The students are the prime beneficiary, allowing them to identify and modify inaccuracies or mis-leading statements within their records. Educators frequently write letters of recom-mendation for students transferring or enrolling in other educational institutions. Students indi-cate whether or not they want to waive access to review the reference. The students will not be able to read the educator's comments if they have waived this right to access. However, stu-dents who do not waive the right to access can review their references. Gontested references can result in liability. Summary Educators pride themselves on being a part of the student's educational development and ca-reer placement. Educators may choose to adopt a no-comment policy to avoid costly legal ex-penses, physical and mental aguish, and profes-sional scrutinization. However, this policy fails to benefit deserving students and society at large. It is a professional responsibility to assist graduates in obtaining employment. To provide oneself with a legally defensible reference, the following guidelines are suggested: 1. Provide only written references. A written reference allows an educator time to thoroughly investigate facts and figures. Phone references are often problematic. Glouded memories and hasty comments can invite litigation. 2. Retain a copy of the provided reference. This copy is influential in defending defamatory allegations. Again, phone conversations can leave the educator with no defensible document. 3. Obtain written consent from the person seeking a recommendation. The student's writ-ten request helps an educator prove that the stu-dent was indeed cognizant of the letter and its anticipated contents. Furthermore, this practice confirms that the date of the requested reference and the letter supplied are in tandem. A refer-ence provided in 1982 holds little credence in a 1992 defamation claim. 4. Use qualifying statements when providing a letter of reference. For example, consider using a phrase such as "in response to your request." This statement infers that the reference letter is not provided maliciously or with ill intent. 5. Seal and address the letter of reference to a particular person. A "To whom it may concern" salutation opens the reference up to individuals who may, or may not, have reason to access the letter. 6. Do not share letters of recommendation with other colleagues, students, or practitioners. This communication could invite the legal problems addressed above. 7. Remain objective and provide only that information that is factual and documented. The social utility of letters of recommendation encourages the sharing of both negative and positive information. However, documented facts are essential when preparing a legal de-fense. 8. Avoid comments that the recipient may interpret as either positive or negative. For exam-ple, "It is definitely a man's job, but if any fe-male could handle it, it would be her." 9. Provide only that information specifically requested. Costly ramifications result when ad-ditional information is volunteered on an ad hoc basis. 10. Stay away from "trap" questions. For ex-ample, prospective employers often ask a refer-ence supplier the question, "Would you hire this person?" This innocuous question is in fact dan-gerous. There may be several reasons why an employer may, or may not, hire a particular in-dividual. Reasons could range from objective (lacking credentials) to subjective (is married). "Yes, I would hire" or "No, I would not hire" responses fail to convey objective information. Writing letters of recommendation is an im-portant professional responsibility. The careless provision of recommendations can pose legal problems. The above suggestions can assist the educator in his or her effort to provide a valu-able, yet legally defensible letter of recommen-dation. References Bell, J . D . , Castagners, J . and Young, J .P . (1984). Employment references: do you know the law? Personnel Journal, 63 (2), 32-36. Cannon v. University of Chicago et al., 441 U.S. 677 (1978). Carrell, M . R . , Kuzmits, F . E . , Elbert, N . F . (1992). Personnel/Human Resource Manage-ment. N Y : Macmillan Publishing Com-pany. Creim, W . B . (1979). The Buckley Amend-ment and a student's right of access to his letters of recommendation. Southern Cali-fornia Law Review, 52, 1163-1187. Danlioff, D . (1989). Employer defamation: reasons and remedies for declining refer-ences and chilled communications in the workplace. The Hastings Law Journal, 40 (3), 687-722. Duffy, D J . (1983/1984, Winter). Defama-tion and employer privilege. Employee Re-lations Law Journal, 9 (3), 444-454. Family Educational Rights and Privacy act, 20 U . S . C . 1232. Fischer, L . , Schimmel, D . and Kelly, G. (1987). Teachers and the Law (2nd ed.). N Y : Longman Publishing. Lattimore v. Tyler Commercial College, 24 S.W.2d 361 (1930). McGuire, C . R . (1989). The Legal Environment of Business. O H : Merril l Publishing Com-pany. Paetzold, R . L . and Willborn, S .L. (1992). Employer (ir)rationality and the demise of employment references. American Busi-ness Law Journal, 30 (1), 123-142. Prentice, R . A . and Winslett, B.J. (1987). Employee references: will a "no com-ment" policy protect employers against liability for defamation? American Business Law Journal, 25 (2), 207-239. Stanton, E.S. (1988). Fast and easy refer-ence checking by telephone. Personnel Journal, 67 {n\ 123-130. True V . Ladner, 513 A .2d 257 (Me. 1986). V o n der Embse, T . J . and Wyse, R . E . (1985). Those reference letters: how use-ful are they? Personnel, 62 {I), 42-46. Webster, G . D . (1992). Background and ref-erence checks. Association Management, 44 (1), 143-150. Wonder, B . D . and Keleman, K . S . (1984). Increasing the value of reference informa-tion. Personnel Administrator, 29 (3), 98-103. 

Legal Concerns in Writing Job Recommendations

Georgia State University

Georgia State University
ScholarWorks @ Georgia State University
Kinesiology Faculty Publications Department of Kinesiology and Health
1993
Legal Concerns in Writing Job Recommendations
Lori K. Miller
Lawrence W. Fielding
Brenda Pitts
Georgia State University, bpitts@gsu.edu
Follow this and additional works at: https://scholarworks.gsu.edu/kin_health_facpub
Part of the Kinesiology Commons
This Article is brought to you for free and open access by the Department of Kinesiology and Health at ScholarWorks @ Georgia State University. It has
been accepted for inclusion in Kinesiology Faculty Publications by an authorized administrator of ScholarWorks @ Georgia State University. For more
information, please contact scholarworks@gsu.edu.
Recommended Citation
Miller, L. K., Fielding, L. W. & Pitts, B. G. (1993). Legal concerns in writing job recommendations. The Physical Educator, 50 (1),
47-51.
Legal Concerns in Writing Job 
Recommendations 
Lori K. Miller, Brenda G. Pitts, Lawrence W. Fielding 
Prospective employers of students routinely 
ask educators for references. As noted by Won-
der and Keleman, educators are rated as a pre-
ferred source of reference information. Letters of 
recommendation serve three significant pur-
poses (Paetzold and Willburn, 1992; Von der 
Embse and Wyse, 1985; Webster, 1992). One, 
references verify application information pro-
vided by the prospective candidate. The solic-
ited reference ensures that the itemized de-
gree(s), certifications, and experiences are 
accurate. Two, the pre-employment reference 
can reduce worker and third-party accidents. 
For example, it is influential for a school district 
to know if a candidate has a history of assaulting 
co-workers or children. A school district that 
fails to check references may be hiring a child 
abuser. The thoroughness of the employer's in-
vestigative procedures is a determinant of liabil-
ity (Carrel, Kuzmits, Elbert, 1992, p. 212). 
Three, thorough employment procedures facili-
tate the hiring of competent, qualified individu-
als. Proper hiring reduces business expenses as-
sociated with employee turnover, absenteeism, 
recruiting and training. 
Literature cautions individuals about giving 
references (Daniloff, 1989). The pervasive fear 
in providing a reference letter hinges on defama-
tion liability (Paetzold and Willburn, 1992). 
However, research indicates there are currently 
few legal cases in which a student has sued an 
educator alleging defamation via a reference. 
The identified cases are from the early twentieth 
century. Three reasons account for the dearth of 
Lori K. Miller, Lawrence W. Fielding, and Brenda G. Pitts 
are faculty members in the Department of Health, Physi-
cal Education, and Recreation at the University of Louis-
ville. 
cases. One, students are not aware of their legal 
rights. Students unfamiliar with the law may 
not know when individual rights have been vio-
lated. Two, students often times are not in a fi-
nancial position to pay the legal expenses associ-
ated with a tort claim. Three, as noted by the 
U.S. Supreme Court, courts enter the educa-
tional domain with extreme reluctance (Cannon 
V. University of Chicago, 1978). The lack of judicial 
precedent is one indication of cases which have 
proceeded beyond the district court level. Cases 
not published in state and federal reporters are 
not readily available for analysis. 
The tort of defamation requires the plaintiff 
to prove three primary criteria: 1) the commu-
nicated statement must be false, 2) the statement 
must be communicated to a third party, and 3) the 
plaintiff must show that the defendant's commu-
nication brought disrepute. Each criteria is exam-
ined separately. 
Falsity of the Statement 
One criteria of a defamation action is that the 
communicated statement be false. Truth is an 
absolute defense. The defendant has the burden 
of proving that the statement is true (McGuire, 
1989, p. 230). 
Defendants do have access to a "qualified 
privilege" defense. This "protects speech in ar-
eas in which uncensored expression is an impor-
tant public policy" (Daniloff, 1989). The quali-
fied privilege allows an educator to make 
comments which may positively or negatively 
influence the prospective employer's hiring deci-
sion. The free flow of information enhances effi-
cient operations in a variety of ways. For exam-
ple, prudent hiring reduces costs associated with 
employee turnover (e.g., hiring, screening, 
training). Society benefits since these costs are 
not passed to the consumer. However, the quali-
fied privilege is not absolute. Courts recognize it 
only when educators make statements in "good 
faith" and for a legitimate purpose. Recommen-
dations made maliciously and with a disregard 
for the facts are subject to liability (Daniloff, 
1989; Fischer, Schimmel, and Kelly, 1987, p. 
82). For example, in Lattimore v. Tyler Commercial 
College (1930), a prospective employer requested 
a reference letter about a former Tyler College 
student. The student alleged that the provider of 
the reference supplied a defamatory reference 
letter. The letter stated that the student: 
did not complete any of his work in our school 
and his record was very bad, indeed, while 
with us. In fact, to be plain with you, he was 
arrested and put in jail for stealing a type-
writer. He was one of the most unsatisfactory 
students we ever had and we feel that you will 
be very much disappointed should you give 
him a place in your organization, p. 362 
The Texas court stated that the provider of the 
reference was not granted a qualified privilege. 
In fact, the evidence indicated that the plaintiff 
had never taken a typewriter, was never ar-
rested, and had never been put in jail. The fail-
ure of the defendant to investigate the accuracy 
of his comments constituted malicious behavior. 
Judgment of the Court of Civil Appeals was re-
versed in favor of the plaintiff. 
In a 1986 case {True v. Ladner), the Supreme 
Court of Maine found the reference provider 
had abused the qualified privilege. The plaintiff 
in this case applied for a position as a high 
school mathematics teacher. The search com-
mittee selected True as the top candidate. The 
Superintendent later denied True employment 
after receiving a phone reference. The Superin-
tendent stated: 
1) True was a good mathematician, but not a 
good mathematics teacher; 2) True was 
"more concerned with living up to the terms 
of his contract rather than going the extra 
mile"; and 3) Ladner (the superintendent) 
did not feel True turned the students on. p. 
260 
The court held that the superintendent's com-
ments were neither privileged nor discretionary. 
Furthermore, the court noted "there was ample 
evidence to support a finding of the falsity of the 
statement in question and Ladner's reckless dis-
regard of its falsity." 
Communication to a Third Party 
Communicating information about a student 
to a prospective employer fulfills the second de-
famatory criteria. A prospective employer may 
request information either orally or in a written 
format. The educator who responds to the re-
quest is transmitting information about the stu-
dent to a third party, the prospective employer. 
Closed conversations between only the educa-
tor and student do not theoretically constitute 
"communication to a third party" since infor-
mation is transferred only between two indepen-
dent parties. Consequently, an educator may 
feel at liberty to verbally assault a student when 
no one else is around. However, courts are re-
peatedly recognizing the concept of defamation 
by self-publication (Prentice & Winslett, 1987) 
which introduces liability when comments are 
communicated to a student in a private setting. 
The key issue is foreseeability. An educator 
could be liable for defamation if it is foreseeable 
that a student may have reason to repeat the in-
formation at a later time. Communication to a 
third party occurs when the student repeats an 
educator's comments to a prospective employer. 
Consider the following situation. 
A female student applies for a job at a public 
elementary school. In an interview, the princi-
pal requests that the student provide a written 
reference from her primary academic advisor. 
The student is fully aware that her relationship 
with her academic advisor is adversarial. In fact, 
the student vividly remembers her advisor belit-
tling her beliefs and morals. Consequently, the 
student tells the principal that a favorable rec-
ommendation from the advisor may not be re-
ceived. The prospective employer may refuse to 
hire the applicant based on the derogatory ref-
erence. The student has an action for defama-
tion if she can prove that the advisor's reference 
was a significant factor regarding her failure to 
secure employment. 
Gommunication about a student among other 
faculty members and administrators has been 
subject to judicial scrutiny. Gonversation 
among those "who have a reason to know" is 
typically regarded as privileged communication 
since the perceived benefit of this communica-
tion outweighs resultant individual harm 
(Duffy, 1983/1984). For example, it is appropri-
ate for an educator to communicate the facts to 
campus police upon witnessing one student as-
sault another. However, gossiping among 
faculty colleagues about the perceived psychotic 
propensities of the student falls outside the realm 
of a qualified privilege. 
Individual Disrepute 
The third criteria of a defamation claim deals 
with individual disrepute. The law of defama-
tion strives to protect an individual's reputation 
(Daniloff, 1989). Any false statement communi-
cated to a third party "that tends to hold the 
plaintiff up to hatred, contempt, or ridicule, or 
tends to injure the reputation of the plaintiff' is 
defamatory (McGuire, 1989, p. 230). For exam-
ple, consider the following statement, "she is a 
good person, but not emotionally strong enough 
to withstand the rigors involved in being an ath-
letic director." This statement has many infer-
ences. One, the recipient of the information 
could conclude that the candidate is an emo-
tional disaster. Two, the recipient could infer 
that the candidate lacks the confidence and as-
sertiveness necessary to function successfully as 
an athletic director. Regardless, the initial state-
ment reflects an opinion which may, or may not, 
be true. 
Implications of the Family Educational Rights 
and Privacy Act (FERPA) 
The 1974 F E R P A (a.k.a. Buckley Amend-
ment) improved parent and student access to 
school records (Belo, Gastagnera, & Young, 
1984; Greim, 1979). F E R P A gives all students 
and parents access to letters of recommendation 
placed in student files since January 1, 1975. 
The students are the prime beneficiary, allowing 
them to identify and modify inaccuracies or mis-
leading statements within their records. 
Educators frequently write letters of recom-
mendation for students transferring or enrolling 
in other educational institutions. Students indi-
cate whether or not they want to waive access to 
review the reference. The students will not be 
able to read the educator's comments if they 
have waived this right to access. However, stu-
dents who do not waive the right to access can 
review their references. Gontested references can 
result in liability. 
Summary 
Educators pride themselves on being a part of 
the student's educational development and ca-
reer placement. Educators may choose to adopt 
a no-comment policy to avoid costly legal ex-
penses, physical and mental aguish, and profes-
sional scrutinization. However, this policy fails 
to benefit deserving students and society at 
large. It is a professional responsibility to assist 
graduates in obtaining employment. To provide 
oneself with a legally defensible reference, the 
following guidelines are suggested: 
1. Provide only written references. A written 
reference allows an educator time to thoroughly 
investigate facts and figures. Phone references 
are often problematic. Glouded memories and 
hasty comments can invite litigation. 
2. Retain a copy of the provided reference. 
This copy is influential in defending defamatory 
allegations. Again, phone conversations can 
leave the educator with no defensible document. 
3. Obtain written consent from the person 
seeking a recommendation. The student's writ-
ten request helps an educator prove that the stu-
dent was indeed cognizant of the letter and its 
anticipated contents. Furthermore, this practice 
confirms that the date of the requested reference 
and the letter supplied are in tandem. A refer-
ence provided in 1982 holds little credence in a 
1992 defamation claim. 
4. Use qualifying statements when providing 
a letter of reference. For example, consider using 
a phrase such as "in response to your request." 
This statement infers that the reference letter is 
not provided maliciously or with ill intent. 
5. Seal and address the letter of reference to a 
particular person. A "To whom it may concern" 
salutation opens the reference up to individuals 
who may, or may not, have reason to access the 
letter. 
6. Do not share letters of recommendation 
with other colleagues, students, or practitioners. 
This communication could invite the legal 
problems addressed above. 
7. Remain objective and provide only that 
information that is factual and documented. 
The social utility of letters of recommendation 
encourages the sharing of both negative and 
positive information. However, documented 
facts are essential when preparing a legal de-
fense. 
8. Avoid comments that the recipient may 
interpret as either positive or negative. For exam-
ple, "It is definitely a man's job, but if any fe-
male could handle it, it would be her." 
9. Provide only that information specifically 
requested. Costly ramifications result when ad-
ditional information is volunteered on an ad hoc 
basis. 
10. Stay away from "trap" questions. For ex-
ample, prospective employers often ask a refer-
ence supplier the question, "Would you hire this 
person?" This innocuous question is in fact dan-
gerous. There may be several reasons why an 
employer may, or may not, hire a particular in-
dividual. Reasons could range from objective 
(lacking credentials) to subjective (is married). 
"Yes, I would hire" or "No, I would not hire" 
responses fail to convey objective information. 
Writing letters of recommendation is an im-
portant professional responsibility. The careless 
provision of recommendations can pose legal 
problems. The above suggestions can assist the 
educator in his or her effort to provide a valu-
able, yet legally defensible letter of recommen-
dation. 
References 
Bell, J . D . , Castagners, J . and Young, J .P . 
(1984). Employment references: do you 
know the law? Personnel Journal, 63 (2), 32-
36. 
Cannon v. University of Chicago et al., 441 
U.S. 677 (1978). 
Carrell, M . R . , Kuzmits, F . E . , Elbert, N . F . 
(1992). Personnel/Human Resource Manage-
ment. N Y : Macmillan Publishing Com-
pany. 
Creim, W . B . (1979). The Buckley Amend-
ment and a student's right of access to his 
letters of recommendation. Southern Cali-
fornia Law Review, 52, 1163-1187. 
Danlioff, D . (1989). Employer defamation: 
reasons and remedies for declining refer-
ences and chilled communications in the 
workplace. The Hastings Law Journal, 40 
(3), 687-722. 
Duffy, D J . (1983/1984, Winter). Defama-
tion and employer privilege. Employee Re-
lations Law Journal, 9 (3), 444-454. 
Family Educational Rights and Privacy act, 
20 U . S . C . 1232. 
Fischer, L . , Schimmel, D . and Kelly, G. 
(1987). Teachers and the Law (2nd ed.). 
N Y : Longman Publishing. 
Lattimore v. Tyler Commercial College, 24 
S.W.2d 361 (1930). 
McGuire, C . R . (1989). The Legal Environment 
of Business. O H : Merril l Publishing Com-
pany. 
Paetzold, R . L . and Willborn, S .L. (1992). 
Employer (ir)rationality and the demise 
of employment references. American Busi-
ness Law Journal, 30 (1), 123-142. 
Prentice, R . A . and Winslett, B.J. (1987). 
Employee references: will a "no com-
ment" policy protect employers against 
liability for defamation? American Business 
Law Journal, 25 (2), 207-239. 
Stanton, E.S. (1988). Fast and easy refer-
ence checking by telephone. Personnel 
Journal, 67 {n\ 123-130. 
True V . Ladner, 513 A .2d 257 (Me. 1986). 
V o n der Embse, T . J . and Wyse, R . E . 
(1985). Those reference letters: how use-
ful are they? Personnel, 62 {I), 42-46. 
Webster, G . D . (1992). Background and ref-
erence checks. Association Management, 44 
(1), 143-150. 
Wonder, B . D . and Keleman, K . S . (1984). 
Increasing the value of reference informa-
tion. Personnel Administrator, 29 (3), 98-103. 


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Legal Concerns in Writing Job Recommendations

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