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Counsels' Corner: Sexual Harassers Suing Employers for Defamation?

Published Wednesday, September 26, 2018
by Gail Cecchettini Whaley, Esq.

 

October is here and we’ll soon know which bills Governor Brown has chosen to sign during his last term in office – including any new employment laws affecting California businesses. If you do business in the Golden State, you’re well aware that the legal landscape is constantly shifting.

One bill the Governor has already signed into law for January 1, 2019, is AB 2770. This bill protects communications made regarding workplace sexual harassment issues and complaints.

Catch-22

AB 2770 is intended to address a situation that victims of harassment, witnesses to harassment, and their employers all face: the threat that the accused harasser will sue them for defamation of character. Defamation is a claim that you injured another person’s reputation by saying or publishing false and unprivileged information about them.

Victims of harassment have been threatened with defamation lawsuits for bringing complaints, as have witnesses who have come forward with information. Fear of facing such lawsuits (or threats of such lawsuits) can deter victims and witnesses from making legitimate claims.

Astoundingly, it’s not only the victims who are being sued -- employers also are being sued for defamation regarding statements made during the legally required harassment investigation process.

For instance, Suzie, an employee of ABC Company, accuses her supervisor Joe of sexual harassment. During the investigation, ABC interviews several witnesses whom Suzie has said have knowledge about the alleged misconduct. Joe now sues ABC claiming the company defamed him by talking to others about these allegations during the investigation.

This threat of a defamation lawsuit puts employers in an impossible situation because they have an affirmative duty to take reasonable steps to prevent and correct harassment in the workplace. It’s impossible to conduct a harassment investigation without discussing the allegations with witnesses and others who have a need to know within the company.

Finally, there’s been concern about the fact that harassers often move on to the next company where they are free to harass again without anyone knowing about prior misconduct. A company who passes along information about a harassment finding to a potential employer may rightly fear a defamation lawsuit from the former employee.

The Solution

AB 2770 seeks to solve the above problems by making three types of communications regarding sexual harassment “privileged,” which means you can’t be sued for defamation unless the communications are made “with malice.”

The bill protects the following communications, as long as they are made without malice:

• Complaints of sexual harassment made by employees to their employer based on credible evidence
• Communications regarding sexual harassment allegations between the employer and “interested persons” (e.g., witnesses or victims)
• An employer’s answer to an inquiry from a prospective employer about whether or not it would rehire a former employee and, if not, if the decision not to rehire is based on a determination that the former employee engaged in sexual harassment

As a result, an employer that receives a credible harassment complaint and investigates the complaint, then takes action consistent with the results of the investigation is protected from a defamation claim from the alleged harasser.

The protections won’t apply if the communication is made “with malice,” meaning that (1) it was motivated by hatred or ill will; or (2) the speaker lacked reasonable grounds for believing the truth of the statement.

What to Know about Reference Checks

While this new law offers protections, caution is still warranted.

When you receive a reference request from a prospective employer do not voluntarily give information about your sexual harassment findings – AB 2770’s protection only extends to answers made in response to an inquiry.

The scenario should look like this: “Would you rehire Joe?” “No.” “Is this because you determined that Joe engaged in sexual harassment?” “Yes.” This should be the end of the discussion, as the prospective employer doesn’t have a need to know any additional information.

Likewise, if you are conducting reference checks during your recruiting process you will also want to ask these questions – just understand that you are not entitled to any more information.

Even with the passage of this new law, employers may want to limit the information they provide in response to reference checks to dates of employment and positions held and not provide additional information. Discussing anything more during the check still can open the employer to liability. If you have questions, it’s a good idea to speak to your legal counsel.

Help from CEA

AB 2770 makes it more important than ever to promptly investigate any and all harassment complaints in the workplace and ensure an objective and thorough investigation is completed, and corrective action is taken. Remember California law requires third-party investigators to be either a licensed attorney or private investigator.

CEA is here to help! Contact us with any questions or concerns, or if you need a trained investigator to assist you.


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