Q. In a recent column you wrote that an interviewer should not reveal to an applicant that he or she had poor references. Doesn't this make the applicant vulnerable to victimization by previous employers? The applicant doesn't know what malicious statements are made and is unable to defend himself!
A. The column on revealing references stimulated a very large number of very thoughtful letters from readers. Most of the comments were variants of the question above. I am indebted to all who wrote for raising a very important consideration, and there is a definite need to clarify the reference question further.
The ethical challenge is to enable the prospective employer to obtain the information necessary to evaluate the applicant's suitability, without exposing the applicant to malicious slanders or violating his or her right to privacy. One distinction that can help us in resolving this dilemma is to keep in mind that there are differing types of references, and differing ways of making use of them.
References can be at various levels of discreetness and of discretion. In other words, some are secret (discreet) and some are more open; some give discretion to the applicant and some do not.
DISCREET WITHOUT DISCRETION
The most dangerous kind of reference is one that is "discreet without discretion". In other words, the prospective employer demands a secret reference from a particular former employer. Here the applicant has no way of knowing what is being said about him or her, and no choice regarding who says it.
In order to avoid ethical pitfalls in this area, the interviewer should be sensitive to the possibility of malice. If the reference letter points to specific and unsubstantiated deficiencies, the interviewer should not take the accusations at face value. Whenever possible, the applicant should be given an opportunity to defend his or her record, but the issue needs to be raised in a way which doesn't disclose the source of the concern.
Example: if the reference letter warns that the applicant is not a "team player," then the interviewer should strive at some stage to explain that in his firm cooperation is valued very highly, and ask the interviewee to give a frank evaluation of his or her suitability for such an environment. This doesn't automatically ring warning bells of a negative reference, but it does give the applicant a minimal opportunity to relate to the issue that was raised.
DISCREETNESS WITH DISCRETION
Whenever the applicant has a degree of discretion in the sources of reference, this opportunity needs to be taken advantage of. If the application process doesn't specifically forbid it, then it is fair to ask an employer if he can give a favorable reference. Of course the employer is not obliged to specify, but in many cases the reply will provide valuable hints to the kind of letter that will be provided. In many cases this will protect the applicant against damaging references.
THE OPEN LETTER OF REFERENCE
If the prospective employer permits it, the best solution is for the applicant to request to see the letter in advance. This will enable him or her to decide whether or not to make use of the reference, and in the case where possibly damaging information is mentioned the applicant can decide how to best make his or her case in the light of this information. Of course it is forbidden to mislead the prospective employer by implying that the content of the letter is secret if in fact the applicant knows what is being said.
A fair and equitable application process requires a bit of effort and foresight on the part of all three parties: the former employer, the applicant, and the prospective employer.
The former employer should make every effort to present objective information, and to mention detrimental information only if it is verifiable and germane to the needs of the prospective employer. If the former employer is not afraid of repercussions and the application process doesn't forbid it, it may be appropriate to gently hint at the general tone of the letter.
The applicant should avoid putting himself in a situation where he is completely at the mercy of any careless statements written by a former employer or colleague. He should strive to obtain any information he can about the content of the recommendation, to the extent that the application process doesn't forbid this.
The prospective employer is obligated to take any negative information provided in the letter with a grain of salt. If the reference contains unsubstantiated accusations, the interviewer should seek a way of raising the issue without implying that a particular letter of recommendation raised the concern. And the application process should be structured to keep the applicant from being completely at the mercy of the person writing the recommendation; the most problematic references that are obligatory and completely secret (“discreet without discretion”) should be used only when absolutely necessary.
SOURCE: Chafetz Chaim laws of Lashon Hara, particularly chapter 6:4.
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The Jewish Ethicist presents some general principles of Jewish law. For specific questions and direct application, please consult a qualified Rabbi.