Sexual harassment claims are now privileged communications.
The #MeToo movement has motivated employees who believe they have been sexually harassed to report their alleged harassers. Employers are consequently taking these reports more seriously. As a result, employees accused of sexual harassment are increasingly bringing defamation claims. There has been a proliferation of defamation lawsuits brought against sexual harassment victims who discuss their allegations during workplace investigations or otherwise, as well as against current or former employers for discussing sexual harassment allegations during employment reference checks.
In an effort to protect sexual harassment victims and employers from being sued for defamation, California lawmakers unanimously passed Assembly Bill 2770. Previously, California’s defamation laws made certain communications by employers privileged—i.e., protected from civil action—including job references concerning an employee’s job performance or qualifications, as long as the statements were made without malice.
Assembly Bill 2770 expands what qualifies as a “privileged communication” to include communications about sexual harassment allegations. Specifically, communications by an employer to a prospective employer or interested person about complaints of sexual harassment are now privileged, as long as they are made without malice and based on credible evidence. The law also protects the former employer’s communication to prospective employers about whether it would rehire the former employee accused of sexual harassment, and whether a decision not to rehire him or her is based upon a finding that the employee engaged in sexual harassment.
The new law also protects any sexual harassment complaint made by an employee to the employer, as long as the complaint is based upon credible evidence and made without malice. Statements made throughout the course of the employer’s investigation, including witness communications, will be protected so long as they are made without malice.
Defamation lawsuits can have a chilling effect on not only a victim’s willingness to come forward, but also the employer’s interest in communicating information about the accused harasser to others—a communication that could ultimately protect future victims, and employers, from repeat sexual harassment offenders.
Author: Kymberly LeGolvan, Associate.
The Maier Law Group helps companies ensure that their policies and practices comply with the relevant workplace regulations. We also offer tailored sexual harassment prevention training for companies. Please contact us at firstname.lastname@example.org for more information.
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