A Guide for Faculty

There are an increasing number of lawsuits being brought against faculty members who write reference letters for students. Most of the cases involve defamation of character, although several discrimination suits have also been filed. The law grants a “qualified privilege” to reference letter writers. This privilege allows the writer to make statements free of liability. However, the privilege is very strictly defined, and a reference writer failing to meet one of the elements of the privilege can be held liable.

The following guidelines will help you to write “safer” reference letters. Although there is no sure way of avoiding a lawsuit, these guidelines will help lower your risk of liability. The guidelines can apply to letters written both for students seeking employment and those applying to graduate schools.

WHEN TO WRITE

  1. Write a reference letter only if asked to; do not volunteer to write one. You may lose the qualified privilege defense by writing a letter without being asked.
  2. NEVER write a letter for a student with whom you have had difficulties or run-ins with in the past. The student could then claim that anything negative you said was due to malice and possibly defeat your privilege defense.

WHAT TO WRITE

  1. It is preferable to write a reference letter to a specific person for a specific job. You can then relate the student’s strengths and weaknesses to the job duties and desirable qualifications stated by the employer.
  2. If the student wants you to write a generic “To Whom it May Concern” letter that s/he can show to numerous employers, state in the letter that the student has requested that type of letter and is solely responsible for its dissemination.
  3. Try to state only factual information as opposed to personal opinion. If your opinion is specifically requested, state that it is your opinion only and try to give concrete examples supporting your opinion.
  4. Make sure that any facts you state are true, not just mere rumors or educated guesses on your part. Be able to provide backup documentation for your comments.
  5. If you do make negative comments, back them up with facts. For example: if you say the person is a bad student, state what that means, such as their grades, attendance, etc.
  6. Do not make comments about the student’s character (e.g. “He is lazy” or “She is considered a campus troublemaker”).
  7. Don’t mention characteristics that can be the basis of discrimination, such as age, sex, marital status, race, national origin, color, religion or handicapping condition.
  8. Don’t distribute or show the letter to any third party. It is your choice whether to give the student a copy of the letter.
  9. You are legally permitted to ask a student to waive the right to see the letter and can refuse to write one without the waiver. Realistically, though, even a confidential letter sometimes makes its way into the student’s hands. The safest policy: If you can’t write an overall positive letter that you feel comfortable sharing with the student, DON’T WRITE THE LETTER.
  10. Informal lunch discussions or “off the record” telephone conversations with prospective employers regarding a person’s performance should be avoided. There is no such thing as “off the record”.
  11. Don’t guess or speculate. If someone asks you questions regarding personal characteristics about which you have no knowledge, state that you have no knowledge.
  12. State in a reference letter, “This information is confidential, should be treated as such, and is provided at the request of (name of student), who has asked me to serve as a reference.” Statements such as these give justification for the communication and leave no doubt that the information was not given to hurt a person’s reputation.
  13. Document all information you release.

Usually, when a reference provider “accentuates the positive and eliminates the negative” there is no liability. Reference providers who become overly concerned about defamation lawsuits, however, may compensate and provide a glowing reference, when, in fact, the person in question may have done something wrong or be a problem performer. In the final analysis, providing a reference requires a careful balancing act between giving and gathering useful reference information and protecting oneself from litigation.

SOURCES:
Karen L. Simpkins, J.D. “Writing Reference Letters: A Guide for Faculty”
Rochelle Kaplan “How to Write Reference Letters: An Introduction to Writing Reference Letters”
National Association of Colleges and Employers “Tips for Providing References”

ADDITIONAL RESOURCES
Sample Faculty Reference Letter for Employment (pdf)
How to Write Reference Letters (from NACE)
Legal Principles Involved with Reference Letters (from NACE)