Torts—Defamation—Compelled Self-Publication In The Employment Context

TORTS—DEFAMATION—COMPELLED SELF-PUBLICATION IN THE EMPLOYMENT CONTEXT Sullivan v. Baptist Mem’l Hosp., 995 S.W.2d 569 (Tenn. 1999).

Karen Sullivan, the plaintiff, sued Baptist Memorial Hospital, the defendant, for defamation, alleging that the defendant’s communication to plaintiff of a false reason for plaintiff’s termination compelled her to publish the defamatory reason to prospective employers, resulting in her not being offered employment.1 Plaintiff had worked as a full-time neonatal intensive care nurse at Baptist Memorial Hospital for fourteen years when she was terminated for her alleged misappropriation of company property.2 While she was working for defendant, plaintiff worked part-time for St. Francis Hospital in its neonatal intensive care unit.3 The plaintiff allegedly told another Baptist nurse who was working part-time at St. Francis that she had taken supplies from defendant for use at St. Francis.4 This nurse informed her superiors at Baptist and plaintiff was terminated soon after.5 The plaintiff denied having any such conversation and denied that she misappropriated defendant’s property.6 The plaintiff sued for defamation because she was compelled to reveal defendant’s false reason for her termination to prospective employers and was denied employment in two instances as a result.7 The Court of Appeals of Tennessee, in an unpublished opinion, decided that Sullivan had been compelled to reveal the defamatory reason for her dismissal and allowed recovery on the theory of compelled self-publication defamation for the first time in Tennessee.8 On appeal to the Supreme Court of Tennessee, held, reversed.9 Tennessee does not recognize compelled self-publication defamation in the employment context as an exception to the publication rule. Sullivan v. Baptist Mem’l Hosp., 995 S.W.2d 569 (Tenn. 1999). The majority of jurisdictions in the United States do not recognize a cause of action for self-publication defamation.10 States that recognize self-publication defamation as an exception to the publication rule do so on a very limited basis. Many states confine self-publication claims to instances where an employee has been defamed by his former employer, and during the course of seeking new employment, is compelled to reveal the defamatory reason for his termination to a prospective employer and is denied a position as a result.11 The Supreme Court of Tennessee in Sullivan v. Baptist Mem’l Hosp. stood firm with the majority by rejecting compelled self-publication defamation as a cause of action for employees who are compelled to reveal the defamatory reason for dismissal from a previous position to a potential employer.12 Tennessee courts first addressed a claim of self-publication13 in a non- employment context. The Supreme Court of Tennessee rejected a self-publication claim in Sylvis v. Miller.14 In Sylvis, the plaintiff received a defamatory letter from the defendant though the mail.15 He published its contents to several friends and family and subsequently sued the defendant for libel.16 The Court held that sending a sealed letter containing libelous material through the mail does not constitute libel where the letter arrives unopened and the person libeled is the publisher.17 In 1899, the Supreme Court of Tennessee first addressed the issue of whether self- publication would satisfy the publication element of defamation in an employment context. In Kansas City M. & B. R. Co. v. Delaney,18 the plaintiff sued for libel when his

1 employer issued a reference letter to plaintiff’s agent that falsely stated that plaintiff was a member of a union and that plaintiff had refused to perform his job duties during a strike.19 The plaintiff showed this reference letter to one person in an attempt to secure employment.20 The Court decided that the plaintiff’s use of the letter did not constitute publication and that there was no publication when the defendant delivered the letter to the plaintiff’s agent at plaintiff’s request.21 More recently, Tennessee courts have had several opportunities to address the issue of whether Tennessee recognizes a cause of action for compelled self-publication defamation. In Raiteri v. RKO General, Inc.,22 the plaintiff alleged that the defendants stated false reasons for plaintiff’s termination that plaintiff was compelled to repeat in his search for future employment. The court stated that the defendant’s statement was a constitutionally protected opinion, but even if it were not an opinion, the plaintiff’s cause of action would fail because, “the plaintiff cannot base his cause of action on his own republication.”23 In Hite v. Glazer Steel Corp.,24 the plaintiff sued for defamation, alleging that he would be compelled to republish the defendant’s false oral statement.25 The court found that the plaintiff failed to state a claim for defamation because he did not allege that he had been compelled to republish, merely that he would be compelled to do so in the future.26 Tennessee has not adopted self-publication defamation as a cause of action, even when limited to an employment context. Other jurisdictions are divided in their recognition of self-publication defamation claims.27 Self-publication defamation developed in other jurisdictions much in the same manner as in Tennessee. Early cases dealt with rare exceptions to the publication rule such as where an illiterate or blind plaintiff had a friend or relative read a defamatory letter aloud.28 Modern cases tend to focus on defamatory statements made by an employer to an employee at the termination of the employee’s employment.29 The case of Bretz v. Mayer30 is an early example of a state court recognizing a plaintiff’s self-publication defamation claim in a non-employment context. The plaintiff was a priest who was trying to establish a new church.31 Upon receiving a defamatory letter from a member of his former congregation, the plaintiff showed the letter to his entire new congregation.32 After reading the letter, several members left the new congregation.33 The Court of Common Pleas of Ohio, Cuyahoga County, ruled that plaintiff’s republication of a letter sent by the defendant did satisfy the publication element of defamation because, “[i]t was patently inevitable that [the plaintiff] would reveal the letter to such persons as he did.”34 The first modern case to recognize a cause of action for compelled self- publication defamation in an employment context Colonial Stores, Inc. v. Barrett.35 In Barrett, the Georgia Court of Appeals recognized that compelled self-publication existed where an employee was required by a federal regulation to reveal to prospective employers the false reason for his termination and was denied employment as a consequence.36 In Grist v. Upjohn Co.,37 the Court of Appeals of Michigan adopted self- publication defamation as an employee’s potential cause of action when it held that, “[w]here the conditions are such that the utterer of the defamatory matter intends or has reason to suppose that in the ordinary course of events, the matter will come to the knowledge of some third person, publication may be effected.”38

2 California recognized self-publication defamation in 1980 in McKinney v. County of Santa Clara.39 In this case, the plaintiff claimed that he would be compelled to repeat the defamatory reason for his dismissal when questioned by prospective employers.40 The court stated: The rationale for making the originator of a defamatory statement liable for its foreseeable republication is the strong causal link between the actions of the originator and the damage caused by the republication. This causal link is no less strong where the foreseeable republication is made by the person defamed operating under a strong compulsion to republish the defamatory statement and the circumstances which create the strong compulsion are known to the originator of the defamatory statement at the time he communicates it to the person defamed.41 The McKinney court justified its holding by analogizing actionable foreseeable republication with foreseeable compelled republication.42 The McKinney court’s rationale for its decision was that the originator of a defamatory statement should be held liable for the foreseeable consequences of the statement.43 The Supreme Court of Minnesota’s opinion in Lewis v. Equitable Life Assurance Soc’y44 is one of the leading modern cases dealing with self-publication defamation. In Lewis, four at-will employees were discharged for gross insubordination even though their prior performance had been deemed satisfactory and commendable.45 Two of the four plaintiffs actually disclosed to potential employers the defamatory reason given for their dismissal; the two others lied to potential employers and claimed that they were either compelled to reveal the defamatory reason for their termination to their new employers after securing employment or had continued the misrepresentation.46 The court held that Minnesota recognizes a cause of action for compelled self-publication defamation.47 The court reasoned that compelled self-publication serves to “hold the originator of defamatory material liable for damages caused by the statement where the originator knows, or should know, of circumstances whereby the defamed person has no reasonable means of avoiding publication of the statement or avoiding the resulting damages . . ..”48 Another leading case is De Leon v. Saint Joseph Hosp., Inc.,49 where the Fourth Circuit rejected a doctor’s claim of self-publication defamation. The plaintiff claimed that he would be compelled to reveal the defamatory statements made by the defendant in his search for future employment.50 The court ruled that there was no publication where the plaintiff published the statement to third parties and that even if there had been publication, there was no cause of action for defamation because the defendant enjoyed a qualified privilege that plaintiff did not rebut with a showing of actual malice.51 The court cautioned that liability in self-publication cases could be enormous because every employer could be liable for self-publication defamation every time an employee is terminated.52 Another court that rejected the self-publication doctrine was the Appellate Court of Illinois in Layne v. Builders Plumbing Supply Co.53 In this case, the employer made false statements to police that the employee threatened, harassed and assaulted another employee.54 The court rejected the plaintiffs self-publication defamation claim and stated several shortcomings of the self-publication doctrine as rationale for the holding,

3 including problems with mitigation, chilling of workplace communications and the employer’s potential scope of liability.55 In Sullivan v. Baptist Mem’l Hosp.,56 the Supreme Court of Tennessee held that the state of Tennessee does not recognize a cause of action for compelled self-publication defamation, even when limited to an employment context.57 The opinion was written by Chief Justice Anderson and begins with an analysis of the use of the word compulsion. The plaintiff argued that her case was distinguishable from Delaney because Delaney involved a voluntary publication to prospective employers.58 Chief Justice Anderson rejected the plaintiff’s argument, stating that compulsion is present in every self-publication defamation case because a prospective employer will always ask an employee his reasons for leaving his former position.59 Therefore, it is foreseeable in every instance that an employee is terminated that he will have to repeat the reason for his termination to prospective employers.60 The potential scope of liability for employers under such a system could be enormous.61 Throughout his argument, Chief Justice Anderson notes his concern with the potential scope of liability for employers should Tennessee adopt the doctrine of compelled self-publication. He quotes the De Leon court’s famous statement that, “the theory of self-publication might visit liability for defamation on every . . . employer each time a job applicant is rejected.”62 Chief Justice Anderson starts his public policy argument at this point, stating that public policy favors open communications in the workplace.63 Employers and employees both have an interest in open communications in order to obtain information regarding job performance, evaluation and reasons for an employee’s dismissal.64 Chief Justice Anderson explains that to allow claims for self-publication defamation would result in a chilling of workplace communication.65 Employers would not reveal to employees the reasons for their termination and employees would not have that information to inform potential employers.66 Chief Justice Anderson continues by noting that should Tennessee recognize a cause of action for compelled self-publication defamation, employees who have been terminated for discriminatory reasons would find it more difficult to establish a prima facie case of discrimination.67 An employer who discriminates against an employee in a majority state and fails to give an explanation to the employee could create suspicion in the finder of fact.68 In a minority state, the employer who offers no explanation could be seen as protecting himself from potential defamation claims.69 Chief Justice Anderson next cites numerous additional reasons for Tennessee’s rejection of the doctrine of compelled self-publication. These include the disincentive for plaintiffs to mitigate, the potential frequency of republication during a normal job search and the problem that the plaintiff controls when the statute of limitations begins to run.70 Chief Justice Anderson concludes his policy argument by stating that an employer could be liable for defamation throughout a former employee’s lifetime.71 Chief Justice Anderson next states the court’s conclusion that the doctrine of compelled self-publication conflicts with Tennessee’s longstanding recognition of the employee-at-will doctrine.72 Employment-at-will in Tennessee was established over a century ago in Payne v. Western & Atl. R.R.73 where the court stated, “[a]ll [employers] may dismiss their employees at will, be they many or few, for good cause, for no cause or even for cause morally wrong, without being thereby guilty of legal wrong.”74

4 Finally, Chief Justice Anderson notes that the Tennessee legislature enacted Tenn. Code Ann. § 50-1-10575 to limit employers’ liability to instances where he publishes with reckless disregard for the truth.76 The Supreme Court of Tennessee’s decision in Sullivan v. Baptist Mem’l Hosp.77 reflects the court’s staunch support for maintaining the employment-at-will doctrine as-is and its historic unwillingness to craft public policy. The Court should have adopted a cause of action for compelled self-publication defamation in Tennessee. The Court’s decision is consistent with precedent and statutory directives and goals of the state of Tennessee but it denies employees an essential cause of action to protect their personal and professional reputations where they may have no other means of recovery. Recognizing a cause of action for compelled self-publication defamation would not matter for discrimination cases in Tennessee. Tennessee’s at-will employment doctrine allows employers to fire employees for no reason and employers often adopt no comment or neutral reference policies. An employer who does not give a reason for an employee’s termination appears to be no more suspect in a minority jurisdiction than in a majority jurisdiction. Anti-discrimination laws do not require employers to provide references openly, just to apply them in a non-discriminatory manner.78 The Court was also concerned with the plaintiff’s ability to control several factors, including mitigation, the number of republications and the point at which the statute of limitations begins to run. Although this argument has merit, careful wording by a court or legislature in implementing self-publication defamation can control these problems effectively. There are two forms of self-publication that have been recognized in the United States, compelled and reasonable likelihood.79 Compelled self-publication occurs where “the originator could have reasonably foreseen that the plaintiff would be compelled to publish the defamatory remarks to a third party.”80 Reasonable likelihood self- publication occurs “if the originator knew or had reason to know the defamed would repeat the statements to a third person . . ..”81 If Tennessee adopted the compelled form of self-publication, plaintiffs would have to prove that they had no choice but to republish. As the Court of Appeals of Oregon realized in Downs v. Waremart, Inc.,82 “[T]here are substantial disincentives against gratuitous self-publication in the employment context. A party who engages in gratuitous self-publication to prospective employers not only risks not recovering on a compelled self-publication claim, but also risks not being hired.”83 It is in the plaintiff’s best interests both in securing employment and maintaining a defamation claim to mitigate by controlling the number of publications.84 Compelled self-publication is not voluntary, and the plaintiff has little actual control over the republication in certain circumstances. In Polson v. Davis,85 the court stated that: [H]ad . . . [the plaintiff] not sought other employment, she ran the risk of facing reduced recovery for failure to mitigate damages. When she did choose to seek other employment, she had either to repeat the defamatory statement in response to direct questions or to deceive her potential employers. That she chose the course of honesty rather than deceit is to be commended, and should not be made the ground for denying her right to recover on this defamation claim.86

5 The nature of the compelled form of self-publication should alleviate any concerns regarding mitigation and gratuitous republication. Where a plaintiff can show that republication was absolutely necessary and that the statement was republished the minimum number of times required to secure employment, then a self-publication claim should be allowed. The Court was concerned with the chilling effect of self-publication defamation on workplace communications. Employers are already hesitant to provide references to terminated employees because of the potential for liability in defamation and other tort actions, such as negligent misrepresentation and negligent referral.87 Many employers have no comment and neutral reference policies.88 The Court should adopt compelled self-publication to prevent employers from avoiding defamation liability by issuing neutral or no comment references to third parties and telling the employee the defamatory reason for his termination under a veil of qualified immunity or conditional privilege.89 The statute of limitations for a defamation claim in Tennessee is six months for a slander action.90 The limitations period for a slander action begins when the words are uttered.91 The problem with the statute of limitations in a self-publication action is that the plaintiff determines when the words are uttered and therefore can determine when the limitations period begins. The Court should adopt compelled self-publication and state that for this cause of action the limitations period begins when the plaintiff learns of the defamatory statement.92 The only problem with this would occur if a plaintiff did not realize at the time that the defamatory statement was communicated that his claim was actionable.93 The employer’s liability will also not continue for the duration of the employee’s life as Chief Justice Anderson states. This is true if the proposed modification to the six-month statute of limitations is applied because a plaintiff would not be able to begin a suit more than six months after the employer communicated the defamatory statement to the employee. Also, most courts that recognize self-publication defamation claims only allow recovery for actual compelled self-publications and not for future compelled self-publications.94 The Supreme Court of Tennessee has allowed few exceptions to the employment- at-will doctrine. Only one is not explicitly stated in a statute, the tort of retaliatory discharge.95 The Court has avoided further modifications to the doctrine of at-will employment.96 In Chism v. Mid-South Milling Co.,97 the Supreme Court of Tennessee stated the recognized exceptions to at-will employment.98 In Whittaker v. Care-More, Inc.,99 the Court of Appeals of Tennessee stated the rationale supporting continued application of the employment-at-will doctrine in Tennessee. The court stated that: [A]ny substantial change in the ‘employee-at-will’ rule should first be microscopically analyzed regarding its effect on the commerce of this state. There must be protection from substantial impairment of the very legitimate interests of an employer in hiring and retaining the most qualified personnel . . . or the very foundation of the free enterprise system could be jeopardized.100 The court continued by stating that the goals of employment-at-will are the attraction of new industry to the state and an increased per capita income for state residents.101 The Supreme Court of Tennessee has also repeatedly refused to do anything but enforce already existing public policy. The Court has traditionally only enforced public

6 policy as “evidenced by an unambiguous constitutional, statutory or regulatory provision.”102 Self-publication defamation is contrary to both established case law and statutes currently in effect. The Court may be correct in refusing to adopt the doctrine of self-publication defamation in light of its historical refusal to change the employment-at- will doctrine and its statements that it will only enforce existing public policies. The Court may also be leaving it to the legislature to adopt self-publication defamation as another exception to the employment-at-will doctrine in order to protect employees under a system that strongly favors employers. The Tennessee legislature enacted Tenn. Code Ann. § 50-1-105 in 1995 to address the issue of post-employment reference practices.103 The statute grants a qualified immunity to an employer who provides good faith references according to the statute.104 This does not guarantee that references will be honest or true, but it does provide incentive to employers. The statute sounds like it should influence employers to give truthful references, but because Tennessee espouses the employment-at-will doctrine, an employer still may terminate an employee for any reason and the employee has no recourse. The statute is really only giving employers additional power over employees in a system that favors employers by giving employers qualified immunity and making the employee prove the employer’s culpable state of mind or a statutory violation before he can rebut the presumption of good faith. Granting employers qualified immunity in providing references should greatly reduce the number of viable self-publication claims in employment scenarios unless the presumption of good faith is rebutted. However, employees who have a valid claim of compelled self-publication defamation will have trouble meeting the heavy burden imposed by the statute. The Supreme Court of Tennessee refused to adopt compelled self-publication defamation in the employment context in Sullivan. While some of its reasoning was sound and consistent with precedent and public policy, the decision struck a blow to employees in Tennessee. The Court should have held that under the facts of Sullivan, Tennessee would allow claims for compelled self-publication defamation limited to the employment context. The at-will employment system has the noble purpose of attracting business to the state and raising the standard of living of state residents as a result.105 But there is a point where an employee incurs a loss arising from the very policy that is meant to help him and that policy may need revision. Modifying the employment-at-will doctrine to make employers and employees more equal in light of modern employment realities instead of the employment realities of the mid-nineteenth century just makes sense.106 The way to change employment-at-will is through the adoption of a cause of action for self- publication defamation in very limited circumstances so as not to jeopardize the goals of the employment-at-will system. One court commented that employees are in a position to tell their side of the story to a prospective employer while the former employer’s only means of communication are references.107 As true as this is, employers are also the party in the best position to evince change in the current system. Most employers already keep detailed records on every employee and can document reasons for termination should a tort suit arise. Adopting self-publication defamation could force employers to maintain even better records. Truth is an absolute privilege to defamation.108 If employers could

7 be more careful about their statements to employees and maintain immaculate records, the employer would have the power to avoid a compelled self-publication suit. The potential scope of liability for employers in self-publication defamation suits is not as extensive as Chief Justice Anderson and others who espouse the De Leon view believe. Employees have to overcome numerous hurdles in addition to those normally present in defamation cases, making self-publication claims invalid in all but the most extreme circumstances.109 The Supreme Court of Tennessee made a mistake in rejecting the doctrine of compelled self-publication outright. In select cases, the doctrine gives an employee a cause of action where he otherwise would have none. The Court should have noted that exceptional facts sometimes arise in the employment context where recovery for compelled self-publication is the best and perhaps only recovery available to the plaintiff. Employees in Tennessee are unprotected from employers who make defamatory statements regarding reasons for the employee’s termination because of the employee-at- will doctrine and the Court’s refusal to recognize a limited cause of action for compelled self-publication defamation.

8 9 1 Sullivan v. Baptist Mem’l Hosp., 995 S.W.2d 569 (Tenn. 1999). 2 Id. 3 Id. 4 Id. 5 Id. 6 Id. 7 Id. 8 Sullivan v. Baptist Mem’l Hosp., No. 02A01-9610-CV-0237, 1997 WL 426981 (Tenn. Ct. App. July 31, 1997). 9 995 S.W.2d 569. 10 See De Leon v. Saint Joseph Hosp. Inc., 871 F.2d 1229 (4th Cir. 1989); Starr v. Pearle Vision, 54 F.3d 1548 (10th Cir. 1995); Spratt v. Northern Automotive Corp., 958 F. Supp. 456 (D.Ariz. 1996); Atkins v. Industrial Telecomm. Ass’n, Inc., 660 A.2d 885 (D.C. App. 1995) (rejecting self-publication defamation because federal court thought Virginia would not want to implement the doctrine); CIM Ins. Corp. v. Masamitsu, Nos. Civ. 97-01533SPK, Civ. 98- 0011114SPK, 1999 WL 1133738 (D.Haw. Dec. 6, 1999); Sarratore v. Longview Van Corp., 666 F. Supp. 1257 (N.D. Ind. 1987) (rejecting self-publication for Indiana because federal court thought state would do the same); Smothers v. Champagne, No. Civ.A. 98-0223, 1998 WL 906705 (E.D. La. Dec. 28, 1998); Monroe v. Host Marriott Svc’s Corp., 999 F. Supp. 599 (D.N.J. 1998); Yeitrakis v. Schering-Plough Corp., 804 F. Supp. 238 (D.N.M. 1992); Hensley v. Armstrong World Indus., Inc., 798 F. Supp. 653 (W.D. Okla. 1992) (rejecting self-publication because federal court thought Oklahoma would do the same); Mollick v. Beverly Enter., No. Civ.A. 97-1215, 1997 WL 634496 (E.D. Pa. Sept. 29, 1997); Carson v, Southern Ry., 494 F. Supp. 1104 (D.S.C. 1979); Rice v. Community Health Assoc., 40 F. Supp.2d 788 (S.D.W. Va. 1998); Gore v. Health Tex, Inc., 567 So.2d 1307 (Ala. 1990); Lynch v. Mellon Bank of Del., Civ.A.No.90C-JA-125, 1992 WL 51880 (Del. Super. Ct. Mar. 12, 1992); Valencia v. Citibank Int’l, 728 So.2d 330 (Fla. Dist. Ct. App. 1999); Layne v. Builders Plumbing Supply Co., 569 N.E.2d 1104 (Ill. App. Ct. 1991); Coughlin v. HMM Assoc., Inc., No. CA927907, 1994 WL 879884 (Mass. Super. Jun.21, 1994); Wieder v. Chemical Bank, 608 N.Y.S.2d 195 (1st Dept. 1994); Jose v. Norwest Bank N.D., 599 N.W.2d 293 (N.D. 1999) (refusing to decide on whether to adopt self-publication defamation); Yetter v. Ward Trucking Corp., 585 A.2d 1022 (Pa. Super. Ct. 1990); Smithkline Beecham v. Doe, 903 S.W.2d 347 (Tex. 1995); Lunz v. Newman, 290 P.2d 697 (Wash. 1955); Bettinger v. Field Container Co., 221 Wis.2d 221 (1998). 11 See Coatney v. Enterprise Rent-A-Car Co., 897 F. Supp. 1205 (D. Ark. 1995); McKinney v. County of Santa Clara, 110 Cal. App.3d 787 (Cal. Dist. Ct. App. 1980); Churchey v. Adolph Coors Co., 759 P.2d 1336, (Colo. YEAR), overruled by Colo. Rev. Stat. Ann. § 13-25-125.5 (West 1997); Blake-McIntosh v. Cadbury Beverages, Inc., No. 3:96- CV-2554 (EBB), 1999 WL 464529 (D. Conn. Jun. 25, 1999); Colonial Stores, Inc. v. Barrett, 38 S.E.2d 306 (Ga. Ct. App. 1946); Belcher v. Little, 315 N.W.2d 734 (Iowa 1982); Polson v. Davis, 635 F. Supp. 1130 (D. Kan. 1986); Carey v. Mount Desert Island Hosp., 910 F. Supp. 7 (D.Me. 1995); Grist v. Upjohn Co., 168 N.W.2d 389 (Mich. App. 1969); Hinz v. REM-Minnesota, Inc., No. C7-97-1798, 1998 WL 157337 (Minn. Ct. App.); Herberholt v. DePaul Community Health Center, 625 S.W.2d 617 (Mo. 1981); Bretz v. Mayer, 203 N.E.2d 665 (Ohio C.P. Cuyahoga County 1963); Downs v. Waremart, Inc., 903 P.2d 888 (Or. Ct. App. 1996); Raymond v. IBM Corp., 954 F. Supp. 744 (D.Vt. 1997). 12 995 S.W.2d 569. 13 In Quality Auto Parts Co. v. Bluff City Buick Co., 876 S.W.2d 818, 821 (Tenn. 1994), the Court set forth Tennessee’s definition of publication as, “a term of art meaning the communication of defamatory matter to a third person.” 14 Sylvis v. Miller, 33 S.W. 921 (Tenn. 1899). 15 Id. 16 Id. 17 Id. at 922. (citation omitted). 18 Kansas City M. & B. R. Co. v. Delaney, 52 S.W. 151 (Tenn. 1899). 19 Id. 20 Id. at 152. 21 Id. The suit was dismissed on the grounds that the plaintiff did not allege, nor could the court identify, any special damages, and there was no libel per se. Id. at 153. 22 Raiteri v. RKO General Inc., Shelby Law No. 56, 1989 WL 146743 (Tenn. Ct. App. Dec. 6, 1989). 23 Id. at *4. 24Hite v. Glazer Steel Corp., No. 03A01-9808-CV-00256, 1999 Tenn. App. LEXIS 220 (Tenn. Ct. App. Apr. 1, 1999). 25 Id. 26 Id. at *6. 27 Sixteen states have adopted self-publication defamation in limited circumstances. Twenty states have rejected the doctrine outright. Thirteen states have either not decided fully or have yet to address the issue. For a current listing of the position of each state, see Bernard E Jacques, Defamation in an Employment Context: Selected Issues, 625 PLI/Lit 829 at 858 (2000). 28 In Lane v. Schilling, 279 P. 267 (Or. 1929), the Oregon Supreme Court held that a blind plaintiff who received a defamatory letter from the defendant had stated a claim for defamation despite the fact that the plaintiff published the defamatory letter by having others read it aloud for him. Even though this could be considered a self-publication action, the Court of Appeals of Oregon called it an unknown disclosure exception to the publication requirement, mainly because the defamatory nature of the letter was unknown to the plaintiff at the time. Downs v. Waremart, 903 P.2d 888, 893 (Or. Ct. App. 1995). 29 See infra notes 11 and 12. 30 Bretz v. Mayer, 203 N.E.2d 665 (Ohio C.P. Cuyahoga County 1963). 31 Id. 32 Id. 33 Id. 34 Id. at 671. 35 Colonial Stores, Inc. v. Barrett, 38 S.E.2d 306 (Ga. Ct. App. 1946). 36 The regulation was issued by the War Manpower Commission, which required that the plaintiff present a statement of availability or an official referral card from the United States Employment Service in order to secure new employment. The defendant, plaintiff’s former employer, gave the plaintiff the equivalent of a restricted statement of availability that stated a false reason for plaintiff’s discharge. Plaintiff was required to present this statement of availability to all prospective employers by the regulation. Id. at 307. 37 Grist v. Upjohn Co., 168 N.W.2d 389 (Mich. Ct. App. 1969). 38 Id. at 406. 39 McKinney v. County of Santa Clara, 110 Cal. App.3d 787, 797 (Cal. Dist. Ct. App. 1980). 40 Id. 41 Id. at 797-798. 42 Id. 43 J. Martin Acevedo, The Emerging Cause of Action for Compelled Self-Publication Defamation in the Employment Context: Should Connecticut Follow Suit?, 72 CONN. B.J. 297, 316-317 (Aug. 1998). 44 Lewis v. Equitable Life Assurance Soc’y, 389 N.W.2d 876 (Minn. 1986). 45 Id. at 822. 46 Id. 47 Id. at 888. The Minnesota legislature enacted Minn. Stat. Ann. § 181.933 in response to Lewis. The first subdivision of the statute gives employees five days following their termination to demand the truthful reason for the termination in writing from the employer. The second subdivision of the statute prohibits defamation actions predicated on the communication in subdivision one. Minn. Stat. Ann. § 181.933 (West 1993). 48 389 N.W.2d at 888. 49 De Leon v. Saint Joseph Hosp., Inc., 871 F.2d 1229 (4th Cir. 1989). 50 Id. 51Id. at 1237. 52 Id. 53 Layne v. Builders Plumbing Supply Co., 569 N.E.2d 1104 (Ill. App. Ct. 1991). 54 Id. at 1106. 55 Id. at 1111. 56 995 S.W.2d 569. 57 Id. 58 Id. at 572. 59 995 S.W.2d 569. 60 Id. 61 Id. See also De Leon , 871 F.2d at 1237. 62 871 F.2d at 1237. 63 995 S.W.2d at 573. 64 Id. 65 Id. 66 Id. at 574. 67 Id. 68 Id. at 574. (citations omitted). 69 Id. 70 Id. at 574. (citation omitted). 71 Id. at 574. 72 Id. 73 Payne v. Western & Atl. R.R. Co., 1884 WL 469 (Tenn. 1884). 74 Id. at *6. See also Forrester v. Stockstill, 869 S.W.2d 328 (Tenn. 1994). 75 Tenn. Code. Ann. § 50-1-105 (Supp. 1998) reads in its entirety: Any employer that, upon request by a prospective employer or a current or former employee, provides truthful, fair and unbiased information about a current or former employee’s job performance is presumed to be acting in good faith and is granted a qualified immunity for the disclosure and the consequences of the disclosure. The presumption of good faith is rebuttable upon a showing by the preponderance of the evidence that the information disclosed was: (1) Knowingly false; (2) Deliberately misleading; (3) Disclosed for a malicious purpose; (4) Disclosed in reckless disregard for its falsity or defamatory nature; or (5) Violative of the current or former employee’s civil rights pursuant to current employment discrimination laws. 76 995 S.W.2d at 575. 77 995 S.W.2d 569. 78 Bradley Saxton, Flaws in the Laws Governing Employment References: Problems of “Overdeterrence” and a Proposal for Reform, 13 YALE L. & POL’Y REV. 45, 61 (1995). 79 Howard J. Siegel, Self-Publication Defamation: Defamation Within the Employment Context, 26 ST. MARY’S L.J. 1. 80 Id. at *15. (citation omitted). 81 Siegel at *13. (citation omitted). 82 903 P.2d 888. 83 Id. at 896. 84 Id. 85 Polson v. Davis, 635 F. Supp. 1130 (D. Kan. 1986). 86 Id. at 1147. See also Lewis, 389 N.W.2d at 888. 87 Compare Randi W. v. Muroc Joint Unified Sch. Dist., 929 P.2d 582 (Cal. 1997) (holding that where misrepresentations in a letter of reference present a substantial, foreseeable risk of physical injury to a third person, a former employer may have a duty to warn third persons, even absent a special relationship or physical injury), with Moore v. Saint Joseph Nursing Home, Inc, 459 N.W.2d 100 (Mich. Ct. App. 1990) (holding that absent a special relationship, a former employer has no duty to disclose evidence of employee’s violent tendencies to a subsequent employer). See generally Robert C. Cloud, Commentary, Negligent Referral-What can I Say?, 137 ED. L. REP. 851 (Nov., 1999) (discussing negligent referrals and their effects in the employment of educators). 88 In no comment references, employers simply refuse to provide any information to prospective employers. Neutral references generally provide factual information, such as dates of employment, pay rate and job title. Susan Oliver, Note, Opening the Channels of Communication Among Employers: Can Employers Discard Their “No Comment” and Neutral Job Reference Policies, 33 VAL. U.L. REV. 687 (Spring 1999). 89 Deanna J. Mouser, Self-Publication Defamation and the Employment Relationship, 13 INDUS. REL. L.J. 241, 316 (1991/1992) (citation omitted). 90 Tenn. Code Ann. § 28-3-103 (West 1990). 91 Id. 92 Mouser, 13 INDUS. REL. L.J. at 316 (citation omitted). 93 Id. 94 See Hite, 1999 Tenn. App. LEXIS 220 at *6. 95 The court stated, “a cause of action for retaliatory discharge, although not explicitly created by the statute, is necessary to enforce the duty of the employer to secure the rights of the employee and to carry out the intention of the legislature.” Clanton v. Cain-Sloan Co., 677 S.W.2d 441, 445 (Tenn. 1984). See also Anderson v. Standard Register Co., 857 S.W.2d 555 (Tenn. 1993). The statute the court refers to is Tenn. Code Ann. § 50-6-116 (West 1995). 96 The Court explained that “Clanton did not create a new exception to the foregoing rule.. . . The decision was not intended as a license for the courts to enlarge on the employee-at-will rule or create other exceptions to public policy or the common-law in the absence of some constitutional or legislative precedent.” Harney v. Meadowbrook Nursing Ctr., 784 S.W.2d 921, 922 (Tenn. 1990). 97 Chism v. Mid-South Milling Co., 762 S.W.2d 552 (Tenn. 1988). 98 These exceptions include where an employee is terminated for discriminatory reasons, for taking time off work to perform jury duty and for refusing to perform some illegal activity in the course of employment. Id. at 555-556. 99 Whittaker v. Care-More, Inc, 621 S.W.2d 395 (Tenn. Ct. App. 1981). 100 Id. at 396. 101 621 S.W.2d at 397. See also Louis B. Ebel, Self-Publication Defamation: Employee Right or Employee Burden?, 47 BAYLOR L. REV. 745, 752-755 (Summer 1995) for a similar argument regarding employment-at-will and self- publication defamation in Texas. But cf. Neighbors v. Kirksville College of Osteopathic Medicine, 694 S.W.2d 822 (Mo. Ct. App. 1985) (finding that compelled self-publication can exist in an at-will employment state). 102 Chism, 762 S.W.2d at 556. See also Watson v. Cleveland Chair Co., 789 S.W.2d 538 (Tenn. 1989); Reynolds v. Ozark Motor Lines, Inc., 887 S.W.2d 822 (Tenn. 1994). 103 Tenn. Code Ann. § 50-1-105. 104 Id. 105 See infra note 101. 106 See Stephen F. Befort, Employee Handbooks and the Legal Effect of Disclaimers, 13 INDUS. REL. L.J. 326, 328-334 (1991/1992) for a discussion of at-will employment and an explanation of why it is an antiquated doctrine. 107 Smothers v. Champagne, No. Civ.A.98-0223, 1998 WL 906705, at *3 (E.D. La. Dec. 28, 1998). The court stated, “the employee can provide the information in the context of his or her version of the events. The prospective employer does not hear the information from the prior employer’s viewpoint and does not have access to specific accusations, details, or information . . ..” 108 871 F.2d 1229. 109 Peter Bennett et al., Defamation Claims Arising Out of the Employment Relationship, 33 TORT & INS. L.J. 857, 869- 870 (Spring 1998) (citation omitted). Bennett notes three hurdles a self-publication plaintiff faces in addition to establishing his prima facie case of defamation. The first is the qualified privilege that usually applies to communications between employers and employees that can usually only be rebutted by a showing of malice. The second is that employees must prove that they have already published the defamatory statement, not that they will be compelled to publish in the future. The third is that the employee must prove that he was compelled, or forced by the circumstances, to publish the statement.