California Protects Employers and Sexual Harassment Victims from Claims of Defamation by Harassers

It also protects employer statements made to others during a good faith investigation into the complaint from defamation claims, as well as employer statements to prospective employers about whether a former employee was fired because of sexually harassing conduct. This bill passed the Legislature with unanimous bipartisan support and becomes effective on January 1, 2019.

More specifically, prior to the amendment’s passage, Civil Code Section 47(c) provided a qualified privilege for employer statements about a former or current employee’s job qualifications or performance to a prospective employer, but it was silent on the issue of sexual harassment. Employers were caught in the uncomfortable position of having knowledge of sexually harassing conduct but not being able to warn future employers so as to prevent such conduct from continuing elsewhere. AB 2770 amended Civil Code section 47(c) expressly to address this issue. It extends the qualified privilege to three types of communications related to sexual harassment in the workplace:

• A complaint of sexual harassment made by an employee to an employer without malice and which is based on credible evidence (i.e. not made in bad faith);
• Communications between an employer and “interested persons,” made without malice, regarding a complaint of sexual harassment (e.g. in an investigation); and
• An employer’s answer, given without malice, to an inquiry about whether it would rehire a current or former employee, and whether the decision not to rehire is based on the employer’s determination that the former employee engaged in sexual harassment (e.g. statements to prospective employers).

AB 2770 does not prevent defamation suits altogether, but rather it seeks to deter such claims by requiring the alleged harasser to show that the statements were made with malice: they were either motivated by hatred or ill will towards the harasser or that the employee or employer lacked reasonable grounds for believing the truth of the statement and therefore acted in reckless disregard of the harasser’s rights.

This new law is a logical byproduct of the #MeToo movement, because it seeks to protect sexual harassment complaints and investigations. As California is often a bellwether for developments in employment law, you can expect that other states will enact similar legislation. These laws will likely further embolden victims of sexual harassment to come forward, and will make it more difficult for alleged harassers to threaten defamation claims in response.