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Should a Job Referee's Opinions Be Exempt from Defamation Laws?

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by Lisa Johnson

about 2 years ago

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In this article from HC online, Phillip Holloway, a lawyer with CNN, suggests that the unwillingness of employers to provide negative references for former employees places people at risk when the employee has a history of violence or mental instability.  

In other words, employers quietly let other organisations unwittingly employ potentially dangerous people when they choose not to detail any problems in a reference. Most people probably feel similarly and that the good of the many outweighs the good of the individual.  But this is a dangerous path to tread and likely to lead to people making hiring decisions based on opinion and not fact, as Mr Holloway specifically suggests that opinion should be exempt from defamation suits.  

I think he is being incredibly naïve about how a person's 'opinion' can be damaging.  I will talk more about this in a moment, but first I want to ponder on his inclusion of mental instability in his suggestions as to why the law should change. 

1 in 5 Australians will experience some form of mental illness in their lifetime.  The majority will recover and go on to lead balanced, productive lives with no ongoing side effects (if given appropriate support and treatment).  The most common mental illnesses are anxiety based disorders.  My daughter suffered anxiety attacks at primary school and had to learn coping mechanisms to help manage them.   Her anxiety is classified as a mental illness. Imagine if employers had the right to bring that up in her future job references – regardless of whether or not her anxiety had any effect on her work.  Imagine if people were allowed to eliminate her for consideration for a job because she once experienced a period of anxiety attacks. Just because a person may experience a period of time where they have a mental illness, this does not mean that they are inherently dangerous or a bad employee.  

Untreated mental illnesses can affect a person's ability to do their job – I accept that – but you are NOT allowed to discriminate against a person because of mental illness. 

You cannot refuse to employ someone because they might experience episodes of mental instability.  If that were the case, nobody would get a job, because the perfectly healthy person right now could very well develop a disorder next week – so there is always the potential for mental instability. Let's move onto opinion.  In my opinion, Candidate A was a hopeless employee because I just didn't like his political views.  I didn't like the way he looked or spoke, and, although his work was fine, I just didn't want to work with him anymore.  THAT is opinion.  

Opinion is where you use your OWN personal bias and judgement to assess a situation or a person.  It doesn't make what you are saying the truth. And if you use your opinion to say something that is fundamentally untrue about a person because this is how you felt about them, then YES, you should be liable for defamation.  

If what you say to someone else is not true and likely to make them think less of the potential employee as a result, then that is bread and butter defamation right there. References are important.  But I have said before that they are loaded with angst at every turn.  

The people who say too much or gossip risk defaming the employee, and those who say nothing add no value at all.  But I would rather have a policy of NO references given than a situation where people can spout opinion and discuss a person's mental stability as fact.

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