Defamation. Slander. Libel. These terms are used so often nowadays that children are familiar with them. How does defamation of character factor into employment law? Employees often feel like they’ve been defamed. But if these phrases mean what we think they do why aren’t there more lawsuits flying around? Can your boss give you a review that totally misrepresents your performance? Can you sue them? More importantly, should you sue them?
Defamation Basics
First of all, “defamation” is an umbrella term within which both “slander” and “libel” exist. Generally, slander is a spoken or oral statement and libel is a written statement.
To prevail in a case for defamation you must prove that a publication was made that is false and causes special damages. More specifically, the following are the essential legal elements of a claim for defamation:
- False publication of a statement of fact (rather than opinion) that:
- —in the case of libel (written publication), exposes plaintiff to hatred, contempt, ridicule or obloquy, or which causes him to be shunned or avoided, or has a tendency to injure him in his occupation;
- —in the case of slander (oral publication), charges plaintiff with a crime, loathsome disease, impotence or want of chastity, or tends directly to injure him in his or her occupation;
- Actual damage to plaintiff’s reputation (but damages are presumed if the publication is defamatory “per se,” see below); and
- Causation (the false statement caused the harm).
Statements are defamatory per se (eliminating the need to prove actual damages) if the statements tend directly to injure plaintiff in respect to his office, profession, trade or business.
Proof that the allegedly defamatory statement is true is a complete defense in California.
The Exceptions Are Key in Employment Lawsuits
As with all legal rules, there are various exceptions to defamation. It is not uncommon for an employer to defame an employee, but get off the hook in a lawsuit because the false statement falls within an exception.
Only false statements of fact, not opinion, are actionable as defamation. This is one of the toughest challenges for an employee in defamation case. You essentially have to convince the Judge that the false statements were fact, not opinions. This is not always easy to do.
For example, is a negative performance evaluation fact or opinion? Generally, negative evaluations are usually held to be statements of opinion, rather than fact. That is unless the performance evaluation falsely accuses the employee of criminal conduct, lack of integrity, dishonesty, incompetence or reprehensible personal characteristics or behavior. But these issues are highly subjective.
Another common exception that causes problems for employees is privilege. An employer has a privilege to communicate, without malice, with persons who have a “common interest” in the subject matter of the communication. This obviously includes co-workers and managers at the company.
Because an employer and its employees have a common interest in preserving morale and job efficiency, an employer’s statements to employees regarding the reasons for termination of another employee generally are privileged.
But a common mistake made by employers is repeating the false statement to non-employees. If your employer makes false statements to prospective employers, the police, your family members, this exception may not apply and you can proceed with your case for defamation.
Should You Sue Your Boss for Defamation?
This is a tough question. Whether or not someone should file a lawsuit depends on a multitude of factors: legal, emotional, economic, and moral. If you really want to know if it is in your best interest to file suit against your former employer, you should consult with an employment lawyer.
Generally, there has been a trend away from defamation lawsuits in the employment context. Judges are swamped with employment cases and, in the writer’s opinion, look for reasons to toss them out of court. Therefore, only very strong defamation cases should be filed. Such cases necessitate that the employee has been harmed in a significant economic way.
The lack of wage equality amongst genders has been well-documented for some time and, as you may have noticed, has become a staple of candidates’ speeches in election years. And rightly so, for even in 2013 women earned 84 cents for every dollar a man earned. This gap is even worse for African American women (64 cents) and Latina women (44 cents). Pay discrimination of this sort is usually easy to hide by prohibiting or discouraging employees from talking about their pay. The employee’s fear of retaliation may also help to keep this illegal activity secret. California, however, had new legislation go into effect on January 1, 2016, to further curb this kind of activity.