California Employers May Disclose Sexual Harassment Allegations to Prospective Employers

Defamation refers to the laws that make someone accountable for harming another’s reputation through the spread of falsehoods either verbally (slander) or in writing (libel). Alleged sexual harassers have sued employers and sometimes victims for defamation in connection with statements made in a sexual harassment complaint or investigation.

In response to the #MeToo and #WeSaidEnough movements’ goals of enabling individuals to more freely speak out about harassment allegations, the California legislature recently amended Civil Code section 47 to clarify what types of communications are “protected” (i.e., privileged as a matter of law) from an accused harasser’s defamation claims.

In order to eradicate “the culture of silence that has allowed serial harassers to evade accountability and strike anew,” the amended law, effective January 1, 2019, explicitly protects:

• any sexual harassment complaint made by an employee to an employer “without malice” (i.e., not motivated by hatred or ill will or not lacking reasonable grounds) based upon credible evidence;
• any communication between an employer and interested persons without malice regarding a sexual harassment complaint; and
• a current or former employer’s non-malicious answer to a prospective employer’s inquiry as to whether a decision to not rehire the employee is based upon the employer’s determination that the former employee engaged in sexual harassment.

Although a former employer may lawfully inform a prospective employer in good faith that it would not re-hire an ex-employee due to prior allegations of sexual harassment, it should proceed with caution before doing so. California employers should obtain the assistance of employment counsel to properly determine whether and to what extent to divulge communications about sexual harassment complaints to anyone outside the company, as well as how to document such discussions, and – on the other end — how to address and document any harassment-related information obtained when checking a job applicant’s employment references.

See also:

• Speaking Out Against Sexual Harassment (December, 2017)
• Ten Top Reasons for Live Sex Harassment Prevention Training (September, 2017)
• The State of Workplace Harassment And Retaliation Claims (July, 2017)
• Expanding Policy and Notice Requirements to Protect Employees (June, 2017)

For further assistance, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth

July 19, 2018