You really can’t escape reading or hearing about Rush Limbaugh’s attacks on Sandra Fluke. Many people are waiting to see if Sandra will sue Rush for defamation. What if we change the scenario a bit and Rush’s comments were said by a manager in the workplace?
Yesterday (March 5, 2012) I delivered a program at the SHRM Employment Law and Legislative Conference in Washington, DC entitled Beyond Discrimination Claims: What Else Can You Be Sued For? My first topic was on: defamation. I couldn’t resist quickly revising my program to include the following scenario for discussion:
Employee Sandra stops an HR Manager in the Company cafeteria and quietly states she is upset to learn that the Company’s health insurance carrier refuses to cover contraception.
Manager Bill overhears the conversation and says to a small group in a rather loud voice, “Contraception coverage? What does that make her? It makes her a slut, right? It makes her a prostitute…she wants to be paid to have sex…Maybe she should spend more time getting her reports out on time.”
Now, this is pretty extreme and most bosses wouldn’t say such a thing. But, then again, nothing really surprises me in the workplace. Here is what a plaintiff (your employee) would need to prove in her defamation claim: 1) a false statement of fact was made that is 2) unprivileged, 3) about an employee, and is 4) disclosed to a third person, and 5) causes damage to an individual’s reputation, or causes public ridicule, shame, hatred or contempt.
As an employer you have what we call a Qualified Privilege in most states (by statute) that provides you with a defense to a defamation claim when you make a statement 1) without malice, 2) said to those with a need-to-know, and 3) the communication is about performance or qualifications.
In the scenario above – let’s assume the employee is a good performer but did turn in a report late. What would happen? The Boss is technically making a true statement when it came to the timeliness issue. But, he is also making inflammatory and likely false statements about Sandra and her lifestyle. Some may say the boss is expressing an opinion – but when bosses make statements – many employees take them as truth. Also, here the Qualified Privilege would not apply as Bill’s comments are made with malice. The bottom line is – the Bill the Boss will likely lose.
Here’s how can you prevent defamation claims:
1. Keep the circle small of those who have a need-to-know about an employee’s performance. Likewise, limit discussions about an employee’s performance or any employment actions.
2. References. Many defamation claims arise out of references – limit those who can give them and be truthful. Most attorneys recommend only giving basic employment information: name, dates of service, ending salary. Obtain an authorization and release from any employee who wants you to give them a reference.
3. Watch your actions and your words. Someone asks you if Jill is a good employee and you roll your eyes, some jurisdictions will find you liable for defamation.