Over the past year and a half, spurred in part by the #MeToo movement, many employers have begun taking additional steps to expand and enhance their sexual harassment policies. Yet when employers take disciplinary action against an employee for engaging in sexual harassment, particularly termination, they face another difficult question: To what extent should employers inform their former employees’ prospective employers about the employees’ misconduct in connection with a reference check?

Many employers have reference check policies that provide only minimal information. Some employers, for example, might provide prospective employers with only their employee’s dates of employment and the last position held. Such employers reason that they have no legal obligation to provide references in the first place, and more detailed or candid disclosures regarding a former employee—particularly a disclosure of a fact that could be taken in a negative light—may form the basis of a potential defamation claim by the former employee. In the #MeToo era, at least one legislature has sought to protect employers from defamation arising from references that mention sexual harassment. The California legislature recently enacted a law that explicitly grants employers a qualified privilege to disclose to prospective employers whether an employee has engaged in sexual harassment.