To avoid legal battle, in bussiness world reference letters are written extremely terse. How do academics get away with this?

Question

It seems to be accepted wisdom in the business world that reference letters for former employees should be extremely terse. They should confirm that the employee worked there, and essentially nothing else:

To whom it may concern: Ellen Ripley was employed by the Weyland-Yutani Corporation from June 2137 to September 2139. Signed, C. Burke, manager."

The standard reasoning is that if the letter contains something unfavorable and the employee is turned down for a future job, they might sue their former company for libel, claiming the unfavorable statement was a lie which damaged their career. In order to avoid the possibility of such a legal battle (which, the reasoning goes, could be very expensive, even if the company wins), the company tells its managers to write letters with no content, so that there's no chance of them containing something actionable.

This question on Workplace Stack Exchange, Is there any evidence that giving references for former employees is inherently risky?, attests to this practice, and the answers provide some suggestion that the company's fears are justified.

On the other hand, in academia, detailed and informative recommendation letters are the norm. They often run to multiple pages, and contain specific information about the candidate's history and activities at the institution, as well as the writer's (supposedly honest) subjective assessment of the candidate's strengths, weaknesses, and potential. This is not only common but effectively mandatory; a minimal recommendation letter of the kind described above would immediately consign the candidate's application to the nearest wastebasket.

This would seem to be just the sort of thing that fills corporate counsel with horror, yet we do it every day. No academic employer of mine has ever told me not to do so; for that matter, I can't say that I've ever received any official guidance, one way or the other, on writing recommendations. Nobody in academia seems to be concerned that writing a letter that could be construed as less than favorable could result in legal consequences. So how are we getting away with it?

Are universities treated differently under the law, making them less vulnerable to such threats? Or do they willingly accept the legal risks in order to make the world a better place by providing actual information about their former students/employees? Or is everyone ignorant of the risk of trouble? Or is there something I have not thought of?

To forestall a couple of objections: I know that academics usually try to write only positive letters, and decline to write if they have nothing good to say, but that's evidently not enough in the corporate world. Anyway, candidates often end up damned by faint praise. Also, I know that we send letters in confidence, with the understanding that they won't be shown to the candidate, and sometimes this is backed by having the candidate sign a waiver, but I have to believe that a sufficiently determined and litigious candidate could get access anyway.

(I know this question may sound rhetorical, but I ask it in seriousness, and hope to learn something from the answers. My context is the US, but if things are substantially different in other places, that would be interesting to know as well.)

Answer 1

My impression is that the difference is largely cultural. The academic community in the U.S. has developed a culture of relying on written letters of recommendation, and this practice has a lot of inherent stability. Someone considering suing knows that a questionable lawsuit would permanently ruin their career, in a way that wouldn't necessarily happen in the business world. (For one thing, academia is a much smaller, more tightly knit, and more philosophically coherent group.) If a student or job applicant did sue frivolously, then it would probably be cheaper to settle, but the university would not do so: proving a point would be a higher priority than saving money. (By contrast, for-profit businesses are less likely to make unnecessary expenditures to try to defend their principles.) University attorneys know that if they advised faculty not to write or require letters, everyone would ignore them and it would just hurt the university's reputation. The culture takes on a life of its own, regardless of the legal context.

However, I believe U.S. legal precedents are actually pretty favorable for academic letters of recommendation. The key phrase is "academic deference," which as I understand it is the theory that academic judgments are not subject to legal review because the courts aren't even capable of evaluating these judgments. (Of course I'm not a lawyer and so I'm probably at least overlooking subtleties.) You can sue for reasons like discrimination, but you can't successfully sue someone who made a good faith effort to judge your academic performance or potential on the grounds that you think they judged it wrong.

The academic deference doctrine is based on a number of precedents, but it's somewhat controversial. For example, people argue that it makes it too easy to get away with discrimination (since it makes courts reluctant to examine evidence), and that lots of non-academic judgments are equally difficult to evaluate but don't have a special doctrine protecting them from review by the courts. See this article by Moss for a review of the precedents and an argument against academic deference.

Depending on the circumstances, there may also be other legal issues. For example, it's much harder to sue someone for libel based on their evaluation of your published scholarly work. In particular, you have to prove actual malice since publishing the work makes you a public figure for this purpose. In other words, it's not enough to prove that the evaluation was wrong; instead, you have to prove that they knew it was wrong or at least had reckless disregard for the truth. (See, for example, Posner's wonderful opinion on whether calling someone a crank is defamatory.) I believe this is much more clear cut and better established than academic deference is, but it is not relevant for unpublished work or other recommendation letter content.

Returning to the cultural theme, it's also worth thinking about psychological factors. If I run a business, then my ex-employees could be applying for jobs at competitors, partners, or companies that are irrelevant to my interests. Among these possibilities, partner companies I'm actively working with are only a small fraction. The generic case is that I won't care about the new employer or will actively harbor ill will towards them. If a lawyer advises me that it's best not to say anything, I may seize on that excuse even aside from the lawsuit potential. By contrast, academia is a world in which we're all partners, and that feels very different. Universities do compete against each other in some ways, of course, but there's a much greater feeling of good will and cooperation than you see between most for-profit companies. It's no surprise that very different norms and practices have developed in a far less competitive environment.

Answer 2

I believe there is a very reasonable misunderstanding here - there is a difference in a "verification of employment", being used as a "reference", and a "recommendation letter". These all have their common uses, but they are handled very, very differently.

Verification of Employment (present or past)

To whom it may concern: Ellen Ripley was employed by the Weyland-Yutani Corporation from June 2137 to September 2139. Signed, C. Burke, manager."

This is a perfect example of the proper, commonly accepted response to a request for a verification of employment. This sort of letter is useful in a wide-variety of circumstances, including:

• Proving your work/career history to an employer
• Verifying your job to a government agency or company (think insurance, banks, State benefits, etc)
• Qualifying for corporate discount/membership arrangements (cell phones, computers, credit unions, etc)

This is not at all to be construed as a letter of recommendation - it isn't one!

There are cases where more information is requested, such as:

• Is the employee eligible to be re-hired at the company
• How did the employment end - were they fired, quit, laid off?
• Salary verification (this is not the most common, but it is not unheard of and more commonly requested by banks and government agencies)

Serving as a Reference

A employer or manager may be asked to serve as a reference, where a prospective employer might wish to call and speak with them personally and ask them various questions. What questions get asked, and any potential for legal action, depends upon what is said, documentation, and consequences. Most of the legal actions revolve around claims of libel or defamation. Note that in the US you are allowed to cherry pick your own reference to provide to a future/prospective employer.

Sometimes this is requested by email or fax, in which case it is common to just treat it as little more than a verification of employment request. However, sometimes this is much more important than a mere verification - it depends upon the position, industry, recruiter, etc.

Letter of Recommendation

In industry a real letter of recommendation functions much more closely to how it is treated in academia. A person in a position to closely evaluate an employee is asked - almost exclusively by the employee - to provide such a letter. This is almost always requested from an immediate supervisor, manager, directory, or executive with a close working relationship with the employee.

All the same rules apply. These are less common in industry, perhaps at least partly because they are rare and unexpected and because unsolicited opinions tend to be discounted and distrusted much more commonly than in academia. However, they can still come in handy.

Fear of torts really isn't that big of a factor as far as I've seen, because a letter of recommendation is expected solely to be positive. I'm not aware of any case of a company suing another company because "you said this guy was great and it turns out he was useless!" It just isn't done.

And an employee couldn't very successfully sue an employer for saying something nice about them; the USA may have a reputation for being litigious, but that's just ridiculous (not that it hasn't ever happened I'm sure, but it's obviously frivolous and very rare).

To forestall a couple of objections: I know that academics usually try to write only positive letters, and decline to write if they have nothing good to say, but that's evidently not enough in the corporate world. Anyway, candidates often end up damned by faint praise.

Actually, in the corporate world this is almost exactly what happens. If an employer doesn't want to provide a real recommendation, they just provide a verification of employment.

I've had recruiters contact previous/current bosses of mine (who I talked with in advance to ensure they would provide a useful reference rather than a mere verification of employment), and been told by the recruiter when such contacts were very positive. "They really gave you a glowing review!"

Most good corporate bosses will be more than happy to say good things if they have a good opinion of you, and will accept any request of yours to share their opinion. If they get asked for a reference and they don't know you well or don't have a great opinion of you, they'll probably just not say very much - unless they hate you, in which case you really shouldn't have offered them as a reference!

How Does Academia Do It?

It's really much like the corporate world does it: they recognize that libel and defamation are in fact illegal, and so avoid even a potential appearance by avoiding saying negative things. They also realize that speaking poorly of others tends to reflect badly on you, too - so "if you don't have anything nice to say, don't say anything at all".

And yes, you can be damned by faint praise. If you are looking for more than an entry-level job at a company and talk about what great work you did at your last place and how valuable you were, and then they talk to the reference you provided (probably your boss or a colleague) and all they'll say is you worked there, and maybe you were a nice person who was usually punctual? Yeah, that's not going to go well in any sector.

Answer 3

In general, yes, there is a major difference in how employees' and students' letters are handled. Applicants to US undergraduate and graduate programs are routinely asked to waive the right to see their letters of recommendation, and therefore the letter writers are free to speak in a much more candid manner and offer a frank appraisal of a candidate's positives and negatives.

It's worth noting that this is often not the case outside the US, where students are often directly given letters of recommendation that are exactly of the bland and generic format you described above. These letters, as you can imagine, are essentially useless in describing a student's real qualifications, and consequently we give those letters very little weight in our deliberations.

Answer 4

In Japan, the recommendation letter is a 推薦状 [suisenjyou] and it will in all but the most Westernized schools be given to the student such that they can read it and stamped with the seal of the professor and possibly an official seal from the school.

The purpose of this is slightly different than an American recommendation letter -- which is more of an appraisal of the student's abilities. By and large, the Japanese recommendation letter serves as an introduction / expression that the professor or teacher vouches for the student as someone trustworthy for the new job or school. It contains little information and not much detail on why the student would be recommended.

It was quite the pain getting letters of this format from some of the Americans less aware of the existence of what to us is such a bizarre practice.

---

I believe but cannot vouch that the practices are similar in Korea and China.

Answer 5

I'd guess part of the answer is that academics deal with the risk because they can't afford not to, because a reference serves a different purpose.

In business, my understanding is that people are largely selected for jobs on things that can be measured and compared apart from references (such as formal qualifications, performance in aptitude tests, years of experience), and on things that the hiring committee is able to assess (such as answers at interview).

While some of these play a part in academia, a large factor of hiring decisions is the applicant's research potential/demonstrated performance. This is sufficiently specialized and difficult to compare that the hiring committee cannot do that task entirely alone. They need additional experts to help make the judgements. Part of that can be done by sending papers to experts chosen by the panel, but part of it is done by receiving detailed references from people who are already familiar with the applicant's work (and so hopefully won't need to spend as much time to make a judgement).

Answer 6

I always show a student (or colleague) the letter I've been asked to write - noting that although s/he has (almost always) waived the right to see the letter, I have not waived the right to show it. S/he can suggest edits, or even ask me not to send it (that's never happened).

Answer 7

In academia, publicly grading a student's performance is par for the course. After all, you get a GPA which is a very public (if often somewhat subjective) "evaluation" of your academic strength... Writing a few words that describe, in essence, where that grade came from, is a logical extension. From there, a full letter of recommendation is not much further.

By contrast, employee evaluations are considered highly confidential; so from the outset, there are different approaches to the way a person's performance is evaluated and publicized. That difference seems to carry forward into the culture of recommendations.

I have been a manager of people "in industry" for years, and ran into this problem from time to time. On a handful of occasions I have agreed to be a reference for people who used to work for me. Typically I have done this only for people who had already left my organization, with whom I had remained in touch, and who I would not be afraid to give a good recommendation. Typically those things tend to go hand in hand... and I know that for at least one of them, my recommendation made the difference for him getting his "dream job" (I know this, because 10 minutes after hanging up the phone to the HR department of his future employer, he called me to say he had just received a verbal offer, and that they mentioned that my reference had tipped the scale). For me, doing the right thing on occasions like that is more important than following recommendations of corporate lawyers... call me reckless.

Update (quoting from http://www.aaup.org/issues/academic-freedom/professors-and-institutions):

The professional standard of academic freedom is defined by the 1940 Statement of Principles on Academic Freedom and Tenure, which was developed by the American Association of University Professors (AAUP) and the Association of American Colleges and Universities. It is the fundamental statement on academic freedom for faculty in higher education. It has been endorsed by over 180 scholarly and professional organizations, and is incorporated into hundreds of college and university faculty handbooks. The 1940 Statement provides:

College and university teachers are citizens, members of a learned profession, and officers of an educational institution. When they speak or write as citizens, they should be free from institutional censorship or discipline, but their special position in the community imposes special obligations. As scholars and educational officers, they should remember that the public may judge their profession and their institution by their utterances. Hence they should at all times be accurate, should exercise appropriate restraint, should show respect for the opinions of others, and should make every effort to indicate that they are not speaking for the institution. AAUP, Policy Documents & Reports 3-4 (9th ed. 2001) (hereafter "Redbook").

Further down this same (rather long) article, there are numerous instances of case law. I am quoting just one that seems to indicate that academic freedom and "selection of faculty" are intertwined - this would seem to give academics the freedom to write proper detailed references (protected by "academic freedom") since such references are used "for the selection of faculty":

State v. Schmid, 84 N.J. 535 (1980), appeal dismissed sub. nom., Princeton Univ. v. Schmid, 455 U.S. 100 (1982)

Any direct governmental infringement of the freedom of teaching, learning, and investigation, is an assault upon the autonomy of institutions dedicated to academic freedom. In addition, universities perform functions, such as the selection of faculty, that are inexorably intertwined with the exercise of academic freedom.

I think that last sentence is the reason "we are getting away with it".