DEFAMATION, LIBEL, AND SLANDER
Defamation is a false statement of fact that is made public and harms the subject’s reputation. Oral statements are called “slander” and written statements are called “libel.” Within the context of the workplace, defamation usually occurs when someone seeks to harm a current or former employee’s reputation, career, or character by making a false statement (either oral or written) about the employee. False rumors or a statement concerning an employee’s competence or honesty can often spread quickly through the workplace. Such defamatory statements can prevent employees from obtaining employment elsewhere, or they might result in lost promotions, personal stress, or missed career opportunities.
Defamation law is state-specific; however, the following are the elements to consider in proving workplace defamation in most states.
- False Statement. A false and defamatory statement about another that is stated as fact (not opinion).
- Publication. An unprivileged publication or communication of the statement to a third party.
- Fault. A fault must occur from the person making the statement that is either malicious or at least negligent.
- Damage. Harm to the subject of the statement must be evident.
- Statements of Fact. A key component to a defamation claim is the requirement that the alleged statement(s) are statements made as though they are fact, not opinion.
- Opinion. Generally, expressions of pure opinion, rather than statements of fact, are not defamatory. If it is proven that the alleged statements are actually true, that is usually a complete bar to recovery for defamation.
PERFORMANCE REVIEWS & REFERENCES
Generally, employers have a qualified privilege for the criticisms and critiques made in oral or written performance evaluation, but there are exceptions for egregious conduct. When an employer makes defamatory statements in a performance review that are motivated by malice, made in bad faith without a factual basis, or are intended to harass, the employer making the comments may be liable for defamation. For example, false allegations of theft, dishonesty, incompetence, and other harmful or criminal assertions-even if made during a performance review-may be considered defamatory.
Generally, if an employer only provides the facts of an employee’s work history for a reference or background check, it is not likely to be considered defamation according to state law. In addition, many states offer employers immunity from liability for the disclosure of accurate information regarding job performance or the reasons for termination.
A defamation claim by an employer against an employee may constitute unlawful retaliation if the employer brings the suit to retaliate against the employee for engaging in protected activity, such as complaining about unlawful discrimination. The effects of slander and libel can be devastating in modern society. The rate at which information travels across the world has made defamation a far more serious matter. As such, employment matters involving discrimination often concern discrimination by future employers as a result of retaliation by a current or former employer.
Slander and libel are specific types of defamation, and the Texas Civil Practice & Remedies Code offers a libel definition under statute §73.001, which reads:
A libel is a defamation expressed in written or other graphic form that tends to blacken the memory of the dead or that tends to injure a living person’s reputation and thereby expose the person to public hatred, contempt or ridicule, or financial injury or to impeach any person’s honesty, integrity, virtue, or reputation or to publish the natural defects of anyone and thereby expose the person to public hatred, ridicule, or financial injury.
Slander mirrors this definition, but comes in oral or spoken form instead of writing or some other graphic form. In order to bring a successful defamation case in Texas, an individual must be able to prove the elements noted above, including the following:
Publication. Publication means the statement is “published” or broadcast to one or more individuals through either spoken or written form.
Statement about the person. People hearing the communication or reading the material must easily recognize the defamatory statements as made about the injured person.Defamatory statements. The statements made must be harmful to the person’s reputation.
Falsity. The statement or statements must be proven to be false. This means that the statements must be one alleging a fact. Someone’s opinion about someone else can never be proven to be false. And, a true statement of fact (no matter how embarrassing or harmful) can never be the basis of a successful defamation claim.
Requisite degree of fault. Under Texas law, two different degrees of fault must be proven-negligence or malice-depending on whether the claim of defamation is about a public or private person.
Damages. The defamation must result in some sort of damage, whether in terms of reputation, business, employment or marketing value. However, certain false statements are considered so bad or heinous that damages are assumed always to have occurred.
Ability to Pay Damages. Often a person who defames someone has no money or assets to pay the damages in a judgment against them. This means that it is good advice to always carefully check the financial resources and other assets of the wrongdoer in a defamation case.
Due to the fact that the amount of money awarded in a defamation claim may not be enough to cover the cost of litigation, it is essential to consider the actual extent of damages caused by the defamation. In addition, assessing the likelihood of recovering for damages prior to pursuing any employment claim for defamation is also advisable. The Law Office of Nicole Conger, PLLC can help analyze the strengths and hurdles in your case.