Suing for Defamation of Character at Work in California

What You Need to Know About Suing for Defamation of Character at Work

Sometimes, employers or other company representatives make false statements about someone at their company. Here’s what you need to know about suing for defamation of character at work in California.

Defamation of character, broken down into either slander or libel, is when a person makes a statement about another that damages the latter’s reputation. To sue for defamation in the workplace, the plaintiff must prove that the statement was false, that it was intentionally stated in a manner as to be heard by a third party, and that it has the tendency to cause damage. Therefore, statements of opinion generally do not constitute defamation. Additionally, there are certain instances in which employers may be protected from defamation lawsuits due to qualified privilege.

What is Defamation of Character? Slander vs. Libel

Broadly, defamation in California is defined as false statements that damage another’s reputation. There are two types of defamation: slander and libel.

According to California Civil Code Section 46, slander is a spoken “false and unprivileged publication” that does any of the following:

Charges a person with a crime
Charges that a person has an infectious/undesirable disease
Directly damages a person with respect to their profession
States that a person is impotent or promiscuous
OR naturally causes actual damage (i.e. financial damage)

Libel, as defined by California Civil Code Section 45, is a written “false and unprivileged publication” that either:

Exposes a person to contempt, hatred, ridicule, or obloquy (strong public criticism)
Causes a person to be shunned
OR tends to injure a person in their occupation

Therefore, slander and libel are quite similar, as they both involve “false and unprivileged publication”, with the former being spoken and the latter being written. This begs the question of what is meant by the term “privileged”. In general, a privileged publication is a statement intended to be heard by another person that is in the “proper discharge of an official duty” and is undertaken without malice (California Civil Code Section 47).

How Do You Prove Defamation of Character at Work?

In order to sue for defamation of character at work, the plaintiff generally must prove a few things. First, they must prove that the statement was both false and published intentionally. The term “publish” does not mean that it must be broadcasted widely; in regards to defamation suits, it simply means that was heard by a third party, even if that third party is one person. In addition, because the claim must be able to be proven false, statements of opinion are generally not defamatory, as an opinion about another person’s character cannot be proven true or false by definition.

Second, it must be proven that the statement was unprivileged. In terms of workplace defamation, this primarily is relevant to workplace performance reviews. In this situation, an employer has qualified privilege, which means that they are generally protected from lawsuits targeting their speech. This is to help foster honest performance reviews, as employers may feel pressure to omit certain facts/beliefs if they are afraid that an angry employee may sue them. However, qualified privilege does not mean that employers may simply say whatever they want. If it is proven that the employer made false statements with malice and at least a disregard for whether or not the statement was true, then their speech was unprivileged. In other words, the employer cannot knowingly make factually incorrect statements with the intent to damage the reputation of the employee in performance reviews because they hate or dislike them.

Third, the false statement(s) must have the tendency to injure the person in their occupation or have caused special damage. According to California Civil Code Section 48a, special damage refers to proven damages in regards to the individual’s business, profession, occupation, etc. as well as all money spent as a result of the defamation. In other words, it must be proven that the false statements naturally would have injured the person’s career or actually caused monetary damage.

How damage is proven depends on whether the damage is per se or per quod. Defamation per se means that the statement is so obviously damaging that no proof is required beyond the statement itself. Defamation per quod means that other outside evidence is required to prove that the statement was in fact defamatory.

Finally, it must be proven that the speaker was negligent in making their defamatory statement if the plaintiff is a private citizen. In other words, they did not exercise reasonable care in determining whether or not the statement was true.

If you are considering suing for workplace character defamation, contact Her Lawyer to be put in touch with an expert attorney that will help build your case.

Examples: Defamation of Character or Not?

Consider the following examples, focusing on whether or not they constitute defamation of character in the workplace.

A supervisor, in a performance review of an employee, states that the employee does not complete tasks on time and shows up late every day. The supervisor knows these statements are false but writes them anyway because he dislikes the employee and wants them to be fired. The employee is fired as a result.
An employer fires an employee and then states to other industry leaders that they fired the employee because they embezzled money. The employer actually fired the employee because the company was rapidly losing money and could not afford to keep the employee. The other employers then refuse to hire the employee.
An employer is casually chatting with another employee, and the employee says that they dislike a different employee because the employee seems like they are mean, even though others disagree. The other employee is fired as a result because the boss does not want a mean person working for them.
In a crowded office, an employee loudly accuses another of having committed a serious crime in the past, even though the employee has no reason to believe this is true. The other employee is fired as a result.

All of these are examples of workplace defamation of character except situation 3. In examples 1, 2, and 4, a person falsely states something that damages the character of another and causes monetary damage as a result. In addition, the person either knew the statement was false or did not care as to whether or not it was false. In situation 3, however, the statement in question was merely an opinion. It was not a factual statement, and as such it could not be proven that it was false. The wronged party could bring a lawsuit against the accuser in situations 1, 2, and 4, but not in situation 3.

In addition, while the accuser in situation 1 has qualified privilege in their performance review, the publication is unprivileged because they showed malice in their false statement. As such, they are able to be held liable in a defamation suit.

FAQs About Suing for Defamation of Character at Work in California

What is defamation?

In California, defamation is a false statement that damages the reputation of another. There are two types of defamation: slander and libel.

What is the difference between slander and libel?

The primary difference between the two is that slander is spoken defamation while libel is written defamation.

What needs to be proven in a workplace defamation lawsuit?

The plaintiff must prove that the statement was unprivileged, false, intentionally published, has the tendency to injure the person, and that the speaker was negligent in making the statement (if the plaintiff is a private citizen).

Is it defamation if the statement was merely an opinion?

Generally, no. However, if the opinion necessitates that the person believes something that is false, then the opinion may be defamatory. For example, if someone states that they think another is a thief, then that necessitates that they believe that the person stole something, which may be proven or disproven.

Is it defamation if the statement is a rumor?

If a person knowingly starts a false rumor that has the tendency to damage the reputation of another, then that may constitute defamation.

Can I sue my employer for something they said in a performance review?

Because the employer has qualified privilege, they may only be sued if they demonstrated malice in their knowingly false statements.

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