Many statements of bias evidence open hostility toward the protected class, and are thus readily recognizable as direct evidence of discriminatory animus. However, certain statements that are not openly hostile are less readily recognizable as discriminatory. However, subtle generalizations about target groups can be used as powerful evidence that the group status of a plaintiff-employee was considered when an employer has taken adverse action against the employee. The Supreme Court had long recognized that unlawful discrimination can stem from stereotypes and other cognitive biases, as well as conscious animus, the First Circuit has reiterated that "the disparate treatment doctrine focuses on causality rather than conscious motivations, since 'unwitting or ingrained bias is no less injurious or worthy of eradication than blatant or calculated discrimination.' " Thomas, supra, at 60 (citing Hopkins v. Price Waterhouse, 825 F.2d 458, 469 (D.C. Cir. 1987), aff'd, Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775 (1989)). The First Circuit further stated:

The concept of "stereotyping" includes not only simple beliefs such as 'women are not aggressive' but also a host of more subtle cognitive phenomena which can skew perceptions and judgments. Price Waterhouse highlighted one such phenomenon: the tendency of "unique" employees (that is, single employees belonging to a protected class, such as a single female or a single minority in the pool of employees) to be evaluated more harshly in a subjective evaluation process.... Other types of biased thinking are also widely recognized.

Thomas, supra, at 61 (citations omitted). See also Eldred v. Consoldiated Freightways Corp. of Del., 898 F.Supp 928, 934 (D. Mass. 1995) (employer's assertions that plaintiff lacked "aggressiveness" and was too "soft" supported "unavoidable conclusion" that plaintiff was passed over for promotion because of her gender).

Can a former employer give a bad reference for a terminated employee under Connecticut law?  The short answer is yes.  Contrary to popular belief, there is no Connecticut law that prohibits a former employer from giving a bad reference to a terminated employee so long as the reference is made in good faith.  In other words, the former employer cannot falsely accuse the ex-employee or fabricate information to damage the individual's professional reputation.  If this occurs, the former employee can bring a defamation claim against the former employer.  However, if the the employer simply expresses a good faith opinion that the former employee was a poor worker, the employer is legally allowed to do so.

Now, practically speaking, most former employers refrain from giving any reference at all, let alone a negative one.  Why? because if a negative reference is given, the former employee may use it as evidence of retaliation or in support of a wrongful termination claim based upon unlawful discrimination on the account of race, gender, age, disability, sexual orientation, religious background, pregnancy, and/or national origin.