New California Law Aims to Protect Employers and Harassment Victims from Defamation Lawsuits

On July 9, 2018, Governor Edmund Brown, Jr. signed into law Assembly Bill 2770 (“AB 2770”) to protect victims of sexual harassment and employers from defamation claims brought by alleged harassers. AB 2770 was sponsored by the California Chamber of Commerce and passed by the California Legislature to address the chilling effect that the threat of defamation suits can have on harassment victims and employers: deterring victims and witnesses from coming forward; deterring employers from telling prospective employers about a genuine harasser; and allowing repeat sexual harassers to harass future victims at their new place of employment.

Privileged Communications Before AB 2770.

Existing law provides a qualified privilege to employer communications about a former or current employee’s job performance and qualifications. (Cal. Civil Code § 47(c).) Although court interpretations of Civil Code section 47(c) arguably allow for sexual harassment complaints and communications during a sexual harassment investigation to be covered by the privilege, the statutory language does not explicitly mention such communications.

AB 2770 Adds to the List of Privileged Communications.

AB 2770 amends Civil Code section 47(c) expressly to include the following three types of communications related to sexual harassment in the workplace:

1. A complaint of sexual harassment, based on credible evidence and made without malice, by an employee to an employer;
2. Communications between an employer and “interested persons,” made without malice, regarding a complaint of sexual harassment; and
3. An employer’s answer, given without malice, to an inquiry about whether or not it would rehire a current or former employee, and whether the decision not to rehire is based on the employer’s determination that the former employee engaged in sexual harassment.

AB 2770 Does Not Protect Malicious Statements

Only statements made “without malice” are protected. A statement is made with “malice” if (1) it is motivated by hatred or ill will; or (2) the speaker lacked reasonable grounds for believing the truth of the statement. Further, AB 2770 does not impose an outright ban on defamation lawsuits by accused harassers. Accused harassers can still bring such suits, but they must prove malice in order to overcome the qualified privileged in Civil Code section 47(c). Thus, AB 2770 should deter and limit accused harassers from bringing defamation claims with little or no basis.