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What Is Defamation And How Does It Apply In The Employment Context

“Thelaw [on defamation] went wrong from the beginning in making the damage and not the insult the cause of action.” Pollack,Law of Torts,13th ed.1929,243,249.

In the course of consulting with many individuals in my office,I hear many complaints that, in addition to their claims about discrimination or other employment violations,they feel they have been “slandered.”

Many times, individuals claim certain documents in their personnel files as incorrect examples of this “slander.”

Slander is a form of defamation under the law,but what is defamation and what evidence do you need to prove defamation in the employment context?

Defamation is made up of the twin torts of libel and slander, the former written while the latter,in general,is oral. In either form,defamation is an invasion of the interest in reputation and good name.

To state a claim for defamation, a plaintiff must prove that the defendant published, or communicated, a false statement that harmed the plaintiff,and the defendant was not privilged to do so. Torosyanv.Boehringerlngelheim Pharmaceutical,Inc.,234Conn.1, 27(1995).

Because of the casual way in which slander is uttered, an injured plaintiff must prove special damages,unless he/she can show that the defamation occurred in one of the slander or libel “per se” categories. These include false charges of a crime involving moral turpitude,incompetence or dishonesty, or charging a professional person with general incompetence. Milesv.Perry,11 Conn.App.584,602 (1987).

Slander perse also includes charging a person with having an existing loathsome,contagious disease or charging a woman with being unchaste. D.Wright&J. Fitzgerald, ConnecticutLaw of Torts,Section147(2d ed.1968&Supp.1982).

In the employment context, an employer’s statement has been ruled defamatory as a matter of law (perse) if it charges an employee with criminal, unethical or seriously improper workplace behavior, or otherwise denigrates his/her ability or fitness to perform his employment, trade or profession. Toroysyan, 234Conn.at27(allegations that plaintiff falsified an expense report).

In order for defendants to prevail on their defense o fa qualified privilege,they must provide sufficient proof of the following:1)an interest to be upheld, 2) a statement limited in its scope to this purpose, 3) good faith, 4) a proper occasion, and 5) a publication in a proper manner to proper parties only. Charles Parker Co.v.Silver City Crystal Co.,142Conn.605,615(1955).

What about defamatory statements in an employee’s personnel file?

In theToroysyan case mentioned above,the Connecticut Supreme Court held that the inclusion of a defamatory statement in an employee’s personnel file constituted the necessary publication element for a defamation action. Torosyan, 234 Conn at 2728.

However,”communications between managers regarding the review of an employee’s job performance and the preparation of documents regarding an employee’s termination are protected by a qualified privilege.”Toroysyan,234 Conn at29.

But here’s another wrinkle: a qualified privilege may be defeated by a finding of actual malice. Toroysyan, 234 Conn. at 29-30.

Along those lines, the Connecticut Supreme Court found in one case that there was sufficient evidence to support the jury’s finding that statements in a termination letter were made maliciously or for an improper or unjustifiable motive.

‘Gaudio v.Griffin Hospital Services Corp.,249 Conn. 523,546 (1999).

As always,if you are concerned about issues at work, consult with an experienced labor and employment attorney.