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New California Statute Shields Victims/Employers from Defamation Claims

C alifornia Governor Jerry Brown has signed Assembly Bill 2770 (Assembly Member Irwin; D-Thousand Oaks), an act to amend Section 47 of the Civil Code.  The bill should protect both sexual harassment victims and employers against defamation claims from alleged harassers.

The bill was sponsored by the California Chamber of Commerce and passed the Legislature with unanimous, bipartisan support—presumably in recognition that victims and employers are facing defamation lawsuits with growing regularity from harassers who claim they have been falsely accused.

If the alleged harasser later resigns or is terminated, employers encounter a different but equally precarious problem with regard to reference checks: risk a defamation claim by advising a prospective employer about the harassment allegations or remain silent and potentially enable the harasser to harass more employees in a new work environment.

Now, harassment victims and employers will be able to breathe a little easier knowing that Civil Code Section 47(c), as amended, will broaden the definition of “privileged publication or broadcast” to include:

  1. A complaint of sexual harassment by an employee (without malice) to an employer based upon credible evidence; and
  2. Communications between the employer and interested persons (without malice) regarding complaints of sexual harassment. This includes current or former employers’ communications regarding whether the employer would not rehire the alleged harasser due to a determination that he or she engaged in sexual harassment.

Although the amendment is a step in the right direction, its impact should not be overstated.  This new protection is merely a qualified privilege, which means that harassers can (and probably will) still sue victims and employers for what they will rather effortlessly claim were “false statements” made “with malice.”  Such claims may be difficult to get dismissed even at the summary judgment stage.

© 2018 Proskauer Rose LLP.

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About this Author

Anthony J Oncidi, Employment Attorney, Proskauer Rose Law Firm
Partner

Anthony J. Oncidi heads the Labor & Employment Law Group in the Los Angeles office. Tony represents employers and management in all aspects of labor relations and employment law, including litigation and preventive counseling, wage and hour matters, including class actions, wrongful termination, employee discipline, Title VII and the California Fair Employment and Housing Act, executive employment contract disputes, sexual harassment training and investigations, workplace violence, drug testing and privacy issues, Sarbanes-Oxley claims and employee raiding and trade secret protection....

310.284.5690
Elaine Lee, Proskauer Law Firm, Labor and Employment Attorney
Associate

Elaine Lee is an associate in the Labor & Employment Law Department. Her practice focuses on representing and counseling management on all aspects of employment law.

Elaine’s litigation work includes defending employers and supervisors against single-plaintiff claims for unlawful discrimination, harassment, whistleblowing, retaliation, and wrongful termination, as well as class action wage and hour disputes. In addition, Elaine advises clients on compliance with state and federal employment laws and develops company policies ranging from hiring to firing and everything in between. She counsels clients from a wide variety of industries, including telecommunications, entertainment, retail, health care and finance.

Prior to attending law school, Elaine was a Certified Public Accountant and worked at a Big Four accounting firm for four years.

310-284-5694