California Law Now Provides an Express Statutory Privilege Against Defamation Claims by Those Accused of Sexual Harassment

Under California law, an aggrieved person can bring a claim for defamation if the person is the subject of a false and unprivileged statement that is injurious to his/her reputation. Defamation can take the form of libel or slander. (Ca. Civ. Code Sec. 44.) Specifically “libel” is defined as a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation. (Ca. Civ. Code Sec. 45.). Whereas, “slander” is defined as a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which: (a) charges any person with crime, or with having been indicted, convicted, or punished for crime; (b) imputes in him the present existence of an infectious, contagious, or loathsome disease; (c) tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits; (d) imputes to him impotence or a want of chastity; or (e) which, by natural consequence, causes actual damage. (Ca. Civ. Code Sec. 46.)

In recent years, a number of defamation lawsuits have been filed by individuals who have been accused of sexual harassment in the workplace in which the individuals claim that the accusations are false and injurious to their reputations. The concern of the California Legislature was that these defamation claims were having a chilling effect on victims of sexual harassment who may be afraid to come forward with their complaints. In response to the #MeToo and #WeSaidEnough movements demanding action to address the ongoing prevalence of sexual harassment, the California Senate Judiciary Committee, in conjunction with the Senate Select Committee on Women, Work and Families, held informational hearings in early 2018. In addition to reexamining the legal standards for sexual harassment in California, the hearings also addressed the issue of defamation claims being filed against victims of sexual harassment, and/or against employers and other witnesses involved in a sexual harassment investigation. As a result, legislation was introduced to modify defamation laws to help mitigate against this chilling effect.

On July 9, 2018, Governor Brown signed Assembly Bill (AB) 2770 which amends California Civil Code section 47 (re: privileged communications). The Senate Judiciary Committee’s June 16, 2018 analysis of the bill explains that AB 2770 codifies California defamation case law as it relates to allegations of workplace sexual harassment. Thus, the bill amends Civil Code section 47 to expressly provide that: (1) employees who report sexual harassment to their employer are not liable for any resulting injury to the alleged harasser’s reputation, so long as the communication is made based on credible evidence and without malice; (2) communications between employers and anyone with an interest in a sexual harassment complaint, such as victims and witnesses, are not liable for any resulting damage to the alleged harassers reputation, as long as the communication is made without malice; and (3) former employers are not liable for any resulting injury to a former employee’s reputation if, in response to inquiries from prospective employers, the former employers indicate that they would not rehire the former employee based on a determination that the former employee engaged in sexual harassment, so long as the statement is made without malice.

For purposes of defamation law, “malice” is defined as a defamatory publication that is either motivated by hatred or ill will towards the plaintiff, or where the defendant lacked reasonable grounds for believing the truth of the publication and therefore acted in reckless disregard of the plaintiff’s rights. (Schep v. Capitol One N.A. (2017) 12 Cal.App.5th 1331; Taus v. Loftus (2007) 40 Cal 4th 683; see also California Civil Instructions (CACI) 1723).)

This change in the law will become effective January 1, 2019.