Risk Research Bulletin Avoiding Defamation Claims Arising Out of Harassment Investigations

Most educational institutions are aware that they Circumstances in Which an need to promptly and thoroughly investigate all Investigation May Generate charges of unlawful harassment in the workplace. Defamation Claims Many institutions are less aware, however, that Typically, a person suing for defamation must prove a harassment allegation brings with it a serious four things: (i) a false written or spoken statement; (ii) risk of related defamation claims. A harassment that the defendant (the person or organization being allegation is in itself a sensitive and potentially sued) “publishes,” or communicates, to a third party; damaging statement about the behavior of a (iii) about the plaintiff (the person filing suit); (iv) co-employee. Any institution that fails to handle that injures the plaintiff’s reputation. The statement its investigation with the utmost care may find must be factual rather than a subjective opinion. For example, calling a co-worker “slippery” is a statement itself defending a defamation claim made by an of opinion, but saying that she misused her office employee who believes his or her reputation credit card for personal charges is an allegation of fact has been injured by information disclosed in the that could be defamatory. course of an investigation.

1/5 Avoiding Defamation Claims Arising Out of Harassment Investigations EduRiskSolutions.org A harassment investigation will expose a wealth of information and misinformation. If disseminated indiscriminately, these statements could support a claim of defamation by the complainant, the employee accused of harassment, or anyone whose name surfaces during an investigation. Nearly every investigation starts with a “statement” that the accused has committed unlawful harassment. Not surprisingly, the majority of reported defamation decisions arising out of harassment scenarios are claims by the accused harasser, challenging the initial complaint that began the investigation.

But harassment allegations offer numerous other opportunities for potentially defamatory statements. An individual accused of harassment may respond to the original allegation by making potentially defamatory counter-allegations against the complainant (for instance, allegations about the complainant’s motivations for making the claim or mental stability). During the course of the investigation, potential witnesses might repeat similar rumors that they have heard or relate negative impressions they have formed about the complainant, the accused employee, or other key witnesses. Indeed, even after the complainant or accused In addition, the very process of investigating and resolving leaves the institution, the institution faces a harassment allegation places the investigator and the institution at significant risk of defamation claims. ongoing potential for exposure to a defamation The investigator has the thankless task of probing all claim, every time a potential future employer allegations and counter-allegations that surface during the investigation. In the process, however, the investigator risks seeks a job reference. “republishing” an allegation that may be false.

Nor are top-level managers free from risk. To the extent management attempts to explain its resolution of a communications made as part of a legitimate workplace harassment investigation to employees, board members, investigation are subject to the powerful protection of a the campus community, or the public, the institution’s qualified privilege (also known in some jurisdictions as a management also risks republishing defamatory allegations. conditional privilege). This means that they are therefore Indeed, even after the complainant or accused leaves the exempt from liability. institution, the institution faces ongoing potential for exposure to a defamation claim, every time a potential There is, however, an important condition to this rule. The future employer seeks a job reference. privilege afforded legitimate workplace communications is qualified, not absolute, and therefore can be forfeited if it The Qualified Privilege and Its Abuse is abused. Despite the enormous potential for defamation claims One type of commonly recognized abuse is excessive to arise out of harassment allegations, relatively few publication, which occurs when a defamatory statement are actually litigated. The primary reason is that is shared with individuals who have no legitimate need to

2/5 Avoiding Defamation Claims Arising Out of Harassment Investigations EduRiskSolutions.org hear or read it. An investigator who repeats a harassment Because of the qualified privilege, a plaintiff cannot allegation or counter-allegation only to individuals involved maintain a defamation lawsuit so long as the employer (i) in the investigation, or to his supervisor, is protected by made the statement in privileged circumstances and (ii) did the privilege. But the same investigator’s repetition of these not abuse the privilege. allegations to his lunch buddies may constitute an abuse. Moreover, the legal system allows a judge to promptly Likewise, a witness who makes a potentially defamatory, dismiss any lawsuits that complain about privileged but relevant, statement while being interviewed by the communications. A jury, however, must decide whether the investigator will usually be protected by the qualified employer abused the privilege. If any legitimate question privilege. If, however, she gives in to temptation and exists whether an institution or its employees abused the repeats that same statement to her two closest friends in qualified privilege, the institution will not be able to obtain the workplace, she has arguably abused the privilege and an early dismissal by the judge but will instead be forced to subjected herself to potential liability for defamation. try the case in front of a jury. Because there is always a risk The other circumstance that commonly raises an issue that the jury could award the plaintiff substantial sums, it of abuse arises when a speaker allegedly publishes a is vital that the institution protect the qualified privilege of defamatory statement with malice. Some jurisdictions state its legitimate investigative communications and foreclose that a defendant acts with malice when he communicates any claim that its employees abused their privilege to speak something with ill will or spite, or with the intent to injure freely during the investigation. the plaintiff. Others require the plaintiff to show that the speaker made a defamatory statement with the knowledge Strategies for Avoiding Defamation that it was false, or with reckless disregard as to its accuracy. Claims and Protecting the Privilege Under either legal standard, employers should never The following are some general, pragmatic steps that an communicate potentially false and injurious statements institution can take to reduce the risk of liability from about their employees to people who do not have an absolute defamation claims arising out of a harassment investigation. need for the information, and potentially defamatory statements should never be communicated carelessly or with ❚❚ Follow Your Own Rules With Respect to the intent to cause harm. Because state law varies on this and Investigations. Once invoked, the institution’s other aspects of defamation law, individuals charged with investigative procedures must be followed to the letter investigating and resolving harassment allegations should for the institution and its representatives to successfully consult with legal counsel to determine how federal and local claim “privilege.” Academic institutions are procedure- laws affect their institution. oriented, and an inexplicable deviation from procedure

Because there is always a risk that the jury could award the plaintiff substantial sums, it is vital that the institution protect the qualified privilege of its legitimate investigative communications and foreclose any claim that its employees abused their privilege to speak freely during the investigation.

3/5 Avoiding Defamation Claims Arising Out of Harassment Investigations EduRiskSolutions.org might result in an excessive publication or, worse, an transmitted by some other secure method. If material inference of “malice.” Any departure from standard needs to be emailed, any such email should bear strong investigative or disciplinary procedures needs to be warnings that the recipient is to maintain confidentiality demonstrably justified by the particular circumstances. and refrain from forwarding or sharing the material. ❚❚ Also Follow the Specific Defamation Laws in Your ❚❚ Attempt to Verify New Allegations Before State. Defamation law varies slightly from state to “Republishing” Them. When new allegations surface state, with some, like California, having passed statutes during an investigation, an investigator should attempt that codify court rulings regarding qualified privilege. to establish the accuracy of the new allegations Your investigation procedures and protocols should be before repeating them. Some courts have found informed by a general understanding of the parameters that an investigator’s failure to properly investigate and limitations of qualified privilege. defamatory statements before repeating them, even to one’s supervisor, creates a question of abuse for the ❚❚ Educate Participants About the Need for Truthfulness jury. Sometimes an allegation can be verified without and Confidentiality. The framework of an investigation the need to question witnesses about it; more often gives the institution an excellent opportunity to educate it cannot be, and then the investigator must act all participants about the need for truthful statements deliberately and carefully to avoid “fanning the flames” and the equally pressing need to share sensitive while seeking corroborating information. information only with those who have a demonstrable “need to know.” Explain to investigators and witnesses ❚❚ Limit the Audience and the Details. Another way the potential for defamation claims and the protections for the investigator to minimize the likelihood of an afforded by maintaining truthful statements and strict “add on” claim is to limit the audience and the details confidentiality during a thorough and professional shared with each witness. Investigators should repeat to investigation. It is perfectly permissible—indeed, witnesses only those statements that are relevant to the desirable—to stress that the institution takes allegations charge and only those statements that a witness needs very seriously but will discipline any employee found to know to further the investigation. An investigator to have made intentionally false or reckless allegations need not repeat a witness’s verbatim allegation but about another. should, instead, ask more general questions that elicit the information without republishing the defamatory ❚❚ Maintain Appropriate Confidentiality of matter. Investigators generally should not share Documentation. Claims of “excessive publication” inflammatory written statements with opposing parties can also be minimized by training supervisors or potential witnesses unless the institution’s policy and investigators in the specifics of maintaining confidentiality during an investigation. With respect to documentation, investigators should keep files about the investigation separate from personnel files, in a locked area with limited access. Only those individuals with a need to review those documents during the investigation should have access to an investigator’s file and notes. Secretarial and administrative work relating to the investigation should be performed by a trusted individual who has been apprised of the special confidentiality of the materials; indeed, in unusually sensitive investigations, investigators may end up typing and filing such materials themselves. When written investigative materials need to be shared within the institution, they should be hand-delivered or

4/5 Avoiding Defamation Claims Arising Out of Harassment Investigations EduRiskSolutions.org requires it. Inflammatory statements often make it more Your investigators, supervisors, and other employees difficult to elicit useful information from a party or should, however, be made aware that careless or witness. In most situations, the investigator can verbally intentionally malicious statements about their coworkers summarize the contents of a written statement in can lead to liability for them personally as well as for your sufficient detail to obtain a thorough response. institution. Moreover, investigations conducted carelessly may lend themselves to claims of “excessive publication” ❚❚ Appoint Investigators and Decision Makers Perceived or “malice.” The institution should educate its employees as Neutral. Despite the institution’s best efforts, about proper investigation procedures and should plan occasionally a defamatory statement must be republished ahead to avoid abusing—and, potentially, losing—the wholesale during the course of an investigation. Claims qualified privilege that protects statements made during of “malice” can best be minimized or eliminated if the the course of sexual harassment investigations. institution uses as investigators and decision makers individuals with no perceived bias against any party. The employer should then use the framework of each When possible, use an independent investigator who investigation to emphasize and re-emphasize to all cannot be portrayed as having a personal or institutional participants the importance of maintaining confidentiality stake in the outcome of the matter. and truthfulness during each investigation. In the process, an employer will greatly reduce the risk that the institution Conclusion or its employees will be found liable for defamation or that the institution will be forced to defend a long and costly Fear of defamation liability must not keep your institution defamation suit. from conducting an effective investigation into every allegation of harassment. On the contrary, a thorough, professional, and confidential investigation is the best way Acknowledgments to avoid litigation about both harassment and defamation. This Risk Research Bulletin was written by Ellen Public policy, as well as developing law, strongly favors Babbitt, a partner with Husch Blackwell LLP and a protecting communications that are made during the course former member of the board of directors of the National of a legitimate workplace investigation. If the institution Association of College and University Attorneys takes positive steps to minimize publication and eliminate (NACUA). She regularly represents and counsels schools the potential for malice or favoritism, the institution and colleges, including UE members, on employment will stand an excellent chance of protecting all legitimate issues. communications from attack on the grounds of defamation.

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UE-113329 05/19

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