• Prior to providing a reference, obtain consent from the person about whom the reference will be given. Written consent is better, but verbal consent will suffice.

• Candidly discuss the type of reference that you will provide.

• Follow your organization's policy regarding providing a reference. If references are handled in centralized fashion, advise the prospective employer that even though you may be named as a reference, your organization's policy prohibits you from providing one.

• Avoid lunch discussions or "off the record" telephone conversations with prospective employers regarding a person's performance. There is no such thing as "off the record."

• If you are unaware that the job applicant has named you as a reference, ask the prospective employer for verification that the person has given consent for the reference.

• Provide factual information, based upon personal knowledge/observation of the person through direct contact with the person or obtained from the person's personnel record or student record.

• Respond to direct and specific inquiries about the job applicant. Direct the response to the particular person who requested the information.

• Relate the reference to the specific position for which the person applied and the work that the applicant will perform.

• If you make subjective statements or give opinions because they are requested, clearly identify them as opinions and not as fact. If you give an opinion, explain the incident or circumstances upon which you base the opinion.

• Don't guess or speculate. If someone asks you questions personal characteristics about which you have no knowledge, state that you have no knowledge.

• Do not disclose protected class information in a reference. Do not include information that might indicate the individual's race, color, age, religion, national origin, disability, gender (unless the individual's name makes gender obvious), or marital/parental status.

• The referral process must be the same for everyone. You can't have a different process or standard for candidates based upon the candidates' protected class status.
• Direct students to opportunities without bias. While instincts and intuition can be valuable aids in personnel selection, providing unguided "gut feelings" about a candidate's fit for an opportunity is dangerous from a legal perspective. Subjective evaluations allow stereotypes and biases to enter the process, which could lead to negative perception and result in the employer's refusal to interview candidates who are qualified.
• Refer/screen resumes without regard to race, color, national origin, or any other characteristics that is covered by protected class.
• Refer/screen resumes based upon job-related criteria. "Job-related criteria" means that the prospective candidate's skills match up to the skills necessary to perform the job duties.

Legal Issues, Spring 2006 NACE