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 What Is Defamation?

“Defamation of character” is used as an umbrella term for any statement that damages another person’s reputation. In the United States, there are laws in place intended to prevent people from ruining other people’s lives when it comes to career, reputation, and personal life. However, it is important to remember that citizens have the right to speak freely about one another without fearing that they are going to get taken to court for litigation. Defamation laws attempt to balance this freedom of speech.

Simply put, defamation is a legal term that refers to the making of false and malicious statements that are communicated either through writing or spoken words. This definition includes libel and slander. As an area of law, defamation works to remedy situations in which someone’s words cause harm to someone else’s livelihood or reputation. A person who has experienced defamation, or who has been defamed, may sue the person responsible for the defamation in a civil court. This can result in liability for the publisher or speaker of the false and malicious statement.

Written defamation, such as someone defaming someone else in a book, magazine, or newspaper, is referred to as libel. Spoken words about someone are referred to as slander.

What Is Employment-Related Defamation of Character?

Employment defamation, or workplace defamation, is a legal issue which involves false statements about an employee that harm that employee’s ability to maintain their current job, or seek a new position. This applies to all employees, whether they are current or former employees. This issue of workplace defamation most commonly arises when a prospective employer attempts to verify a candidate’s background by seeking a reference from the candidate’s current or former manager, or employer.

If an employer or former employer lies about the candidate in their job reference, and that statement hurts the candidate’s chances of receiving a job or damages their reputation, the injured party may have a legal claim for defamation.

Another example of how employment defamation may occur is if an employer makes defamatory statements in the workplace which results in the employee being terminated by the company. This applies if another person, such as a coworker, makes the defamatory statements. If the statements have created such a hostile work environment that the employee has no other choice but to resign, the employee may consult an attorney to see if they are able to file a wrongful termination lawsuit.

How Is Employment-Related Defamation Proven?

To prove a defamation case in court, the plaintiff must prove five specific elements regarding the circumstances of the case. These elements are:

  • The employer made a defamatory statement: A statement is generally considered to be defamatory if it harms the former employee’s reputation by lowering them in the estimation of the community. A statement may also be considered defamatory if the statement deters third parties from associating or dealing with the employee;
  • The employer published the defamatory statement to a third party: Publication may be verbal or non-verbal;
  • The employer’s statement was false: Generally speaking, the duty to prove that a defamatory statement is false falls on the former employee. They must show specific facts demonstrating that their former employer’s statements were not well-grounded;
  • The employer was at fault in making the false statement: The fault that an employee must prove is based on the extent of the employer’s knowledge that their statement was false; and
  • The false statement caused injury to the employee’s reputation: An employee must prove that their injuries would not have occurred if not for their employer’s false defamatory statements.

What Are Some Examples of Defamation of Character in the Workplace?

Defamation can operate in a variety of ways in terms of the workplace. When considering the actual defamatory statement, it matters less who makes the statement, and more about the truthfulness of the statement and how it impacts the employee.

The following are some anecdotal examples of defamation of character in the workplace:

  • A former supervisor tells a prospective employer that Sue stole from the business while she was employed with them. However, Sue did not steal anything. As a result of the supervisor’s statement, the prospective employer decides to hire a different candidate. Sue loses out on the job she was otherwise qualified for;
  • A co-worker tells their supervisor that Sue lied on her job application. This leads the supervisor to start an investigation, and Sue is suspended without pay for several weeks until the investigation has concluded. However, Sue never lied on her job application; and
  • Sue’s ex-husband tells a prospective employer that Sue exhibits less than desirable behavior and cannot be trusted. None of these things are true; however, the employer decides not to hire Sue based on this information.

In all three of these circumstances, Sue is the victim of defamatory statements that have affected her job opportunities, impacted her reputation, and caused her harm.

Slander in the workplace is possibly the most common form of defamation. As previously mentioned, spoken defamatory words are called slander. Slander involves the oral “publication” of defamatory remarks that are heard by a third party. Examples of slander in the workplace include:

  • Any sort of statement which implies that the victim is unable to carry out their office or employment;
  • Any assertion that the slandered person somehow lacks integrity; and/or
  • Statements that hurt the person’s professional reputation.

An example of employee defamation of employers could be when a former employee shares false information about their previous employer. If these false claims damage the employer’s reputation in the industry, the employer could sue the former employee for defamation. However, state laws will vary greatly in terms of whether this is allowed.

Are There Any Exceptions or Defenses to Employment Defamation?

There are two types of defenses to defamation. They are common law defenses, and constitutional defenses.

Common law defenses to defamation include:

  • Substantial Truth: If the statement was indeed true, then there is no basis for a defamation action. However, the burden is on the defendant for proving that the statement was actually true;
  • Absolute Privileges: Some situations rely so heavily on free discourse that the law provides immunity from defamation liability. Such privileges arise in governmental proceedings; and
  • Qualified Privileges: These privileges are based on the social utility of protecting communications that are made in connection with the speaker’s moral, legal, or social obligations. An example of this would be how a former employer may provide information about an employee to a prospective employer.

The Constitution of the United States also provides defense for defamation. The availability of constitutional defenses will depend on the status of the person being defamed:

  • Public Officials: Public officials, such as politicians, cannot sue for defamation unless the author of the statements knew or should have known they were false;
  • Public Figures: Public figures, such as celebrities, also cannot sue for defamation unless the author of the statements knew or should have known they were false; and
  • Private Persons: Everyday citizens may sue for defamation and recover damages for injury done to their reputation and private lives. This remains regardless of whether or not the author of the statements knew or should have known they were false.

To summarize, the truth is always a defense to defamation. If the statement in question is untrue, then the statement counts as defamation. However, if the statement is true albeit unflattering, that would not be defamation.

An exception to employment defamation would be a boss slandering employees. This may involve circumstances in which an employer provides a bad reference. Many states offer protection to employers who give bad references if those employers are acting in good faith. However, employers who intentionally provide false information, or act recklessly with regard to the truth, may find themselves involved in a defamation lawsuit.

Should I Hire a Lawyer if I Need Help with an Employment-Related Defamation Claim?

If you believe that you are being defamed in the workplace, you should immediately consult with a skilled and knowledgeable employment attorney. An experienced and local employment law attorney can advise you regarding your best course of action, and how you should collect evidence to support your claim. An employment attorney can also represent you in court as needed.

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