January 7, 2019

An increasing number of employees are including defamation claims against their former employers when pursuing claims of discrimination and harassment in the workplace.  But when are statements made by employers deemed defamatory and therefore actionable? Employees are encouraged to evaluate their situation to determine if what they heard or read about themselves in the workplace in actuality constitutes defamation.

What is defamation?
Defamation is a false and unprivileged publication that has a natural tendency to injure the plaintiff or cause the plaintiff special damage.  [Taus v. Loftus (2007) 40 Cal.4th 683, 720.]  Defamation may consist of libel (written defamation) or slander (oral defamation).  [Civ. Code § 44.]

Libel is defined as “a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.”  [Civ. Code § 45.]

Slander, on the other hand, is “a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means. . . .”  [Civ. Code § 46.] A slanderous statement may charge a person with a crime, or with having been indicted, convicted, or punished for a crime.  It may also characterize a person as having an infectious, contagious, or loathsome disease, or as being impotent or lacking chastity.  [Civ. Code § 46.]

Slander is more commonly found in the employment context than libel, particularly during pre-termination investigations, at termination, or even during post-employment conversations with prospective employers.  Statements that tend to injure an employee with respect to his or her occupation are especially slanderous, either by accusing the employee of an inability to perform the general functions required of his or her profession, trade, or business, or by imputing something with reference to the employee’s office, profession, trade, or business that has a natural tendency to lessen its profits.  [Civ. Code § 46.]

What is required to prove defamation?
The tort of defamation requires: (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) that has a natural tendency to injure or that causes special damage.  [Taus v. Loftus (2007) 40 Cal.4th 683, 720.] These elements vary depending on whether the plaintiff is a private or public figure, and whether the defamatory statement is of private or public concern.  A private plaintiff accused of something of private concern will have a much easier time proving defamation than would a plaintiff who is a public figure.  Generally, most employee plaintiffs are not public figures and the subject matter of the statement is not a matter of public concern.

Assuming the plaintiff employee is a private individual, she should ask herself the following preliminary questions in evaluating her case for defamation against her employer:

 1.  Was the defamatory statement published?
Publication is the communication of the defamatory statement to a third person who understands its defamatory meaning as applied to the plaintiff.  [Shively v. Bozanich (2003) 31 Cal.4th 1230, 1242.]  This means that the defamatory statement does not need to be made to the public or to a large crowd; communication to a single individual other than the plaintiff is sufficient . [Ringler Assocs. Inc. v. Maryland Cas. Co. (2000) 80 Cal.App.4th 1165, 1179.]

2.  Can the defamatory statement be proven true?
Fortunately, a statement concerning a private individual, such as an employee plaintiff, is likely to be one of private concern.  If this is the case, the plaintiff employee does not carry the burden of proving the defamatory statement false.  Instead, the defendant employer carries the burden of proving the defamatory statement is true.  [Ringler Assocs. Inc. v. Maryland Cas. Co. (2000) 80 Cal.App.4th 1165, 1180.]

3.  Is the statement actually defamatory?
Only false statements of fact, not opinion, are actionable as defamation.  Whether the statement is one of fact or opinion is a question of law to be decided by the court.  [Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 260.]  The dispositive question is whether a reasonable person could conclude that the published statements imply a provably false factual assertion.  [Moyer v. Amador Valley J. Union High School Dist. (1990) 225 Cal.App.3d 720, 724 – 725.]  To answer this question, California courts have developed a “totality of the circumstances test” to determine whether an alleged defamatory statement is one of fact or opinion.  [Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 260.]  The court examines the statement in light of the context in which it was published and considers its meaning in reference to relevant factors, such as the occasion of the utterance, the persons addressed, the purpose to be served, and “all of the circumstances attending the publication.”  [Jensen v. Hewlett-Packard Co. (1993) 14 Cal.App.4th 958, 970; Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 260 – 261.]

A defendant cannot necessarily avoid liability for defamation by framing false statements in terms of “I think,” “I believe,” or “In my opinion.”  For example, a statement such as “In my opinion John Jones is a liar” implies the speaker has knowledge of facts which indicate that John Jones told a lie.  This statement can cause as much damage to Jones’ reputation as stating “John Jones is a liar.”  [Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 18 – 19.]

However, negative job performance evaluations are usually statements of opinion, rather than fact, and hence are not actionable.  The court in Jensen v. Hewlett-Packard Co. held that unless an employer’s performance evaluation falsely accuses an employee of criminal conduct, lack of integrity, dishonesty, incompetence, or reprehensible personal characteristics or behavior, it cannot support a cause of action for libel.  [Jensen v. Hewlett-Packard Co. (1993) 14 Cal.App.4th 958, 965.] This is true even if the employer’s perceptions about the employee’s efforts, attitude, performance, potential, or worth to the company are objectively wrong and cannot be supported by concrete facts.  [Jensen v. Hewlett-Packard Co. (1993) 14 Cal.App.4th 958, 965.]

In order to be actionable as defamatory, statements need to be capable of being proved true or false.  For example, where a high school newspaper published an article quoting an opinion of a student accusing a teacher of being the “worst teacher” at a high school, the court determined that there was no factual assertion capable of being proved true or false.  The statement was clearly viewed as an expression of subjective judgment by the speaker.  [Moyer v. Amador Valley J. Union High School Dist. (1990) 225 Cal.App.3d 720, 725.]

4.  Is the defamatory statement privileged?
A privileged communication includes one made, without malice, to persons who have a “common interest” in the subject matter of the communication, 1) by someone who is also interested in the statement, 2) by someone in such relation to the recipient so as to reasonably imply that the motive for the communication was innocent, or 3) by someone who was requested by the interested person to give the information.  [Civ. Code § 47(c).]

For example, in Comstock v. Aber, the court concluded that an employee’s report of sexual assault by a co-worker to a health care professional and to her company’s human resources department was to interested persons and therefore conditionally privileged under Civil Code section 47.  [Comstock v. Aber (2012) 212 Cal.App.4th 931, 953.]

Further, an employer and its employees have a common interest in boosting morale and ensuring business efficiency.  Therefore, an employer’s statements that are made without malice to employees regarding the reasons for termination of another employee are conditionally privileged.  [King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 441.]

Employees should remember that this “common interest” privilege is “conditional,” meaning it can be lost if the employee establishes that the employer made the statement with malice, which means knowledge of the statement’s falsity or reckless disregard as to whether the statement is true or false.  [Noel v. River Hills Wilsons, Inc. (2003) 113 Cal.App.4th 1363, 1368 – 1369.]  Malice may overcome the privilege if the employee can show that the publication was motivated by hatred or ill will, evidencing a willingness to vex, annoy, or injure another person [Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 723], or that the employer purposely avoided the truth or made a deliberate decision not to acquire knowledge of the facts that might confirm the probable falsity of the charges.  [Antonovich v. Superior Court (1991) 234 Cal.App.3d 1041, 1048.]

However, reports of discrimination, harassment, and retaliation made to governmental agencies, such as the U.S. Equal Employment Opportunity Commission (EEOC) and the California Department of Fair Employment and Housing (DFEH), are afforded absolute immunity, even if the complaint was made with malice.  [Cruey v. Gannett Co., Inc. (1998) 64 Cal.App.4th 356, 368 – 369.]

5.  Do I need to prove special damages?
In the employment context, many statements complained of by employees fall within the category of defamatory statements that are so inherently damaging to a person’s reputation that they are considered defamatory per se (eliminating the need for the plaintiff to prove special damages).  Under Civil Code section 46, statements which impute a general disqualification in an employee, such as statements that the employee lacks the ability to carry out the duties his or her office or profession requires, have a natural tendency to injure an employee’s reputation with respect to his or her occupation and are considered slanderous per se.  [See, Civ. Code § 46.]  In fact, statements which fall under the first four categories enumerated in Civil Code section 46 require no proof of actual damages.  [Regalia v. The Nethercutt Collection (2009) 172 Cal.App.4th 361, 367.]

6.  Does my employer have any defenses?
Proof that an alleged defamatory statement is true is a complete defense in California. Further, consent to a defamatory statement is also a defense.  For example, “Where a defendant, not in the presence or hearing of third persons, makes a slanderous statement about a plaintiff, and thereafter at the request of the plaintiff repeats the statement in the presence and hearing of third persons, such repetition cannot be made the basis of an action for slander.”  [Royer v. Steinberg (1979) 90 Cal.App.3d 490, 498.]  Also, as explained above, many statements made in the employment context may fall under the broad scope of conditional privilege, allowing an employer to make statements about employees (even statements concerning the employee’s job performance) when the statement is of common interest and made without malice.  Finally, plaintiffs have one year from the time they learn of the defamatory statement to file a claim for defamation.  [Code Civ. Proc. § 340(c).]

Need more information?
ESKRIDGE LAW may be contacted by phone (310/303-3951), by fax (310/303-3952) or by email (geskridge@eskridgelaw.net).  Please visit our website at eskridge.hv-dev.com.

This article is based on the law as of the date posted at the top of the article.  This article does not constitute the provision of legal advice, and does not by itself create an attorney-client relationship with Eskridge Law.