Question: In my job as a supervisor, I received a complaint that one of the employees I supervise was sexually harassing a co-worker. The accusations were descriptive and lewd. I reported the complaint to the owner of the company. Now the accused employee is very angry with me and is threatening to sue me for defamation. I was just doing my job but now I am concerned. Does the law protect me?
Answer: Generally, in order to prove defamation, the accused employee must prove that you made a false and unprivileged statement of fact about him/her to a third party, and that the accused employee was damaged by your statement.
California law provides specific “privileges” that provide a defense to a defamation action. One new privilege addresses the situation you are facing.
On June 25, 2018 the California Legislature unanimously passed AB 2770, and Governor Brown signed the bill into law on July 9, 2018. In response to the #MeToo and #WeSaidEnough movements demanding action to address the ongoing prevalence of sexual harassment, the Senate Judiciary Committee, in conjunction with the Senate Select Committee on Women, Work and Families, held informational hearings in early 2018. These hearings sought to identify legal and policy reforms needed to transition California toward a culture free of harassment. The Legislature determined that the state’s defamation laws sometimes deter victims, witnesses, and former employers from making complaints or communicating information about harassers to others. As a result, AB 2770 was introduced and received widespread support from the business community.
AB 2770 makes three types of communications related to sexual harassment privileged, meaning they cannot form the basis for a defamation lawsuit, as long as the communications are made without malice. First, the bill protects a non-malicious complaint about sexual harassment communicated by an employee to an employer. Second, non-malicious communications by the employer to “interested persons,” such as an investigatory agency, witnesses, investigators, human resources professionals, co-workers, and other persons involved with resolving the sexual harassment complaint are protected. Finally, AB 2770 protects non-malicious communications, in response to an inquiry, in which a former employer tells a prospective employer that the former employer would not rehire the former employee based on the former employer’s determination that the employee engaged in sexual harassment. While many employers’ policies and human resources best practices prohibit providing this type of information to prospective employers, the Legislature specifically added this protection for employers who may choose to disclose such information, without malice, to a prospective employer.
So how does one know if a communication is made “without malice?” As interpreted by California courts, a malicious communication is one that is either motivated by hatred or ill will, or is made without reasonable grounds for believing that the matter asserted is true. AB 2770 protects only communications that are made “without malice.” This means that in the context of sexual harassment allegations and investigations, victims and witnesses may make complaints, but false accusations made out of spite or in complete disregard for the truth will not be protected.
One stated goal of this new law is to extend California’s public policy protecting employees from sexual harassment. The text of the bill is available on the California Legislature’s website: