Workplace Defamation: Understanding Character Assault

Defamation of character in the workplace can cause significant harm to an individual's reputation, relationships, and career prospects. It occurs when an employer or coworker makes a false statement that damages another person's reputation or character. This can be in the form of written (libel) or verbal (slander) communication, and it must be proven false, published, defamatory, and intended to cause harm. Defamation cases can be challenging to prove, and often require substantial evidence and the expertise of an experienced attorney to guide individuals through the legal process.

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Libel and slander

To be considered defamation, a statement must be false, published, defamatory, unprivileged, and intended to cause injury or damage to the plaintiff's character. It must be a statement of fact, not an opinion. For example, a statement such as "Tom Smith stole money from his employer" could be considered defamatory if it is untrue and damages Tom's reputation or ability to work. However, a statement such as "Tom, you're a thief" would not be considered defamation, as it does not damage Tom's character in anyone else's eyes.

In the context of workplace defamation, libel or slander can occur when an employer or coworker makes dishonest statements about an employee to others, including prospective employers. For example, a written, negative reference from an employer to a prospective employer could be considered libel. Slanderous statements made by a coworker, such as false accusations of criminal activity or assertions of incompetence at work, can also lead to legal action.

To prove a defamation claim, the plaintiff must demonstrate that the defendant made an unprivileged statement to someone other than the plaintiff, that the statement was false and defamatory, and that it caused actual damage to the plaintiff's reputation or was inherently harmful. While it can be challenging to sue an employer for defamation, it is important to gather as much evidence as possible, including witness testimonies and documentation of false statements.

Proving damage

To prove damage, you must first establish that the statement in question is false. Witnesses who can attest to the falsity of the statement can be invaluable to your case. For example, if a co-worker is escorted out of the building by security, creating a false impression that they committed a crime, witnesses can provide testimony to refute this impression. Additionally, it is important to gather as much evidence as possible. Take screenshots or photographs of false statements made in documents, emails, or on social media, and obtain contact information from witnesses.

The nature of the statement itself may also be considered when proving damage. Some statements are inherently harmful and are known as defamation per se. These include statements that cause ridicule, contempt, or injury to one's profession, as well as accusations of immoral conduct or serious crimes. For instance, claims that a person has been indicted, convicted, or punished for a crime, or that they have an infectious disease, are considered slander in many jurisdictions. In these cases, you may not need to prove actual damages as the defamatory nature of the statement is obvious.

It is worth noting that opinions, no matter how unfavorable, typically do not constitute defamation. Courts will consider factors such as the specific words used, the context of the statement, and to whom it was addressed to determine if it is an assertion of fact or merely an opinion. For example, a boss stating that an employee is "not a very nice person" is likely to be considered an opinion, whereas accusing them of stealing from the company is a statement of fact.

Finally, to strengthen your case, it is important to demonstrate that the defamatory statement caused specific harm or damage to you. This can be done through various means, such as providing receipts, invoices, wage statements, or other financial or legal documents that showcase your losses due to the defamation. If you can prove that your employer's defamatory statements resulted in tangible financial or professional losses, it will bolster your claim for damages.

Statements vs opinions

Defamation of character in the workplace can take many forms, including workplace gossip, a negative reference from a boss to a prospective employer, or a statement that causes ridicule, contempt, or injury in connection with one's profession. However, it is important to distinguish between statements and opinions when determining defamation.

Statements are considered defamatory when they are false and tend to harm another person's reputation. In the context of the workplace, this could include false accusations of criminal activity, claims of having a contagious illness, or assertions of incompetence. To prove defamation, one must show that the statement is false, published or communicated to a third party, defamatory, and intended to cause injury or damage to one's character.

On the other hand, opinions are generally protected by the constitutional right to free speech and are not considered defamatory. An opinion expresses the speaker's subjective views and is not a statement of fact. However, an opinion can become defamatory if it implies undisclosed defamatory facts or if a reasonable person can logically infer that the opinion is based on those facts. Courts use a multi-factor test to determine whether a statement is an assertion of fact or opinion, considering the precision of wording, context, and purpose of the communication.

For example, if a boss says that an employee is "not a very nice person," it is likely to be considered an opinion. On the other hand, if the boss accuses the employee of stealing from the company, it is a statement of fact and could be considered defamatory if it is false and meets the other elements of defamation.

It is important to note that defamation laws vary from state to state, and it is not always easy to sue an employer for defamation. Seeking legal advice from a defamation lawyer or employment attorney is crucial to understanding one's rights and options in such situations.

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Defamation per se

There are generally four categories of statements that constitute defamation per se:

• Saying that someone committed a crime or engaged in immoral conduct: This includes false accusations of criminal activity or immoral behaviour, which can cause serious harm to a person's reputation.
• Saying that someone has a contagious or infectious disease: Statements that falsely claim someone has a loathsome or communicable disease can be extremely damaging to an individual's reputation and well-being.
• Saying something harmful about someone's business, trade, or profession: Statements that negatively impact a person's ability to conduct their profession or business are considered defamatory per se. This includes claims of incompetence or a lack of integrity in performing their job duties.
• Saying that someone engaged in sexual misconduct: Statements that falsely accuse someone of sexual misconduct or imply a lack of chastity can cause significant harm to an individual's reputation and relationships.

It is important to note that the precise definitions and rules surrounding defamation per se may vary by state or jurisdiction, so consulting with a specialised lawyer is recommended to understand the relevant laws in your area.

Defamation defences

Defamation of character in the workplace can have serious repercussions for the victim, including financial and personal pain, and can even lead to substantial economic loss for the business. It is important to know that victims of defamation have legal recourse and can sue for damages.

There are four commonly recognized defences to defamation: privilege, consent, truth, and opinion.

Privilege

Privilege can be absolute or qualified. An absolute privilege permits an employer to be absolved of liability even if the published statement is made with ill will toward the employee. Statements that are absolutely privileged include those made during official proceedings, arbitration proceedings, legally required background checks, or other governmental proceedings. A qualified privilege protects the employer if the statement is made without "malice" or ill will. Examples include evaluations, appraisals, investigative reports, references, counselling or warnings, grievance adjustment discussions, and discipline or discharge letters.

Consent

An employee may be deemed to have consented to the publication of a statement if they authorized it or if it was made as part of a disciplinary procedure.

Truth

Truth is a complete defence to a defamation lawsuit. If the statement made is true, it cannot be considered defamatory.

Opinion

An opinion, no matter how unfavourable, is not considered defamation. Courts use a variety of questions to determine whether a statement is an assertion of fact or opinion, including the language used, to whom the statement was addressed, and the context or purpose of the communication.

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