One reason why employees in California might be hesitant to report sexual harassment in the workplace is that, among other reasons, those employees might fear defamation claims brought by the alleged harassers. In an effort to protect California employees who report sexual harassment and sex discrimination, the California legislature passed a law against this very practice, and that new law went into effect on January 1, 2019. The law, AB 2770, amends Section 47 of the California Civil Code to make it easier for employees to come forward with sexual harassment allegations in the workplace.
The history of defamation claims against employees who have filed sexual harassment complaints makes clear that a law like AB 2770 is necessary to protect employees and to make them feel more comfortable coming forward with allegations against alleged sexual harassers in their places of employment. According to a report from Capital Public Radio, many women have faced defamation lawsuits after filing sexual harassment claims against employers and fellow co-workers.
For example, the report discusses the experiences of a former employee named Sandy who filed a sexual harassment complaint against her manager. Sandy made the allegations approximately 20 years ago, and soon after, she was served with papers in a defamation claim in which she was named as the defendant. As the report underscores, “the [defamation] lawsuit made her second guess her decision to come forward,” and even now, Sandy requested that her last name be removed so that her decision to report sexual harassment in the workplace does not continue to affect her current or future employment.
The new law seeks to address these harmful defamation claims and to prevent them from happening. The law clarifies that, if an employee comes forward with a sexual harassment allegation in good faith, that employee cannot be sued for defamation.
The new law, as we mentioned, amends Section 47, which concerns privileged libel, slander, and defamation claims. Prior to the amendment, the law provided that “libel is a false and unprivileged written publication that injures the reputation and that slander is a false and unprivileged publication, orally uttered, that injures the reputation.” The law went on to clarify that certain communications were privileged, and thus could not result in libel or slander claims, including “the job performance or qualifications of an applicant for employment that are made without malice by a current or former employer to a prospective employer.”
AB 2770 adds language to the law, making clear that additional privileged communications, meaning those that can not result in a libel or slander claim, include “complaints of sexual harassment by an employee, without malice, to an employer based on credible evidence and communications between the employer and interested persons regarding a complaint of sexual harassment.”
If an employee has questions about filing a sex discrimination or sexual harassment claim, an experienced California employment law attorney can assist with the case. Our firm can answer questions about the new law, as well as other protections available to employees concerning sex discrimination in the workplace. Contact Minnis & Smallets for more information.
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