Employee Reports Of Harassment Are Protected Against Libel Or Slander Suits
A California appellate court ruled that an employee's reports of sexual harassment to an employer are privileged against libel or slander suits subsequently brought by the accused harasser. Cruey v. Gannett Co., 64 Cal.App.356 (1998). The decision should encourage employees to come forward with reports of sexual harassment to their employer, aiding employers in dealing with sexual harassment effectively and immediately.
The case involved a lawsuit brought by Daniel Cruey against his employer, Gannett Company, and another employee, Christine Lacy. Cruey was a general manager who had supervised several employees, including Lacy. Lacy complained to Gannett's human resources department, accusing Cruey of sexual harassment. As a result of these allegations and other incidents, Cruey was fired. He sued Gannett alleging wrongful termination, but also sued Christine Lacy for defamation.
The defamation claim against Lacy was based solely on her complaints to Gannett that Cruey was sexually harassing her. The court held that Lacy's reporting of harassment could not be the basis of a slander or libel claim unless Cruey could show that they were made with a malicious intent, meaning that Lacy made them knowing that they were false or not caring whether they were true. The court's decision clarifies that complaints by employees made pursuant to an employer's internal sexual harassment complaint procedure are afforded a conditional privilege granted to other employee/employer communications. As long as complaints are made in good faith, an individual employee cannot be sued for making them.
The court's decision should aid employers in convincing employees to report sexual harassment. Employees need not fear that they will be sued by the harasser if they come forward with complaints of sexual harassment, provided they are not fabricated and are made in good faith. Similarly, employers should not have to fear that their sexual harassment investigations will be used against their employees or against the company in a libel or slander suit. Illegal Employee Still Entitled To Protection From Sexual Harassment
A California appeals court held that an employee who fraudulently obtained her job by presenting a false immigration document and social security card could still maintain a sexual harassment suit against her employer. Murillo v. Rite Stuff Foods, 65 Cal.App. 4th 833 (1998).
Plaintiffs in many sexual harassment cases either quit or are terminated before they sue their employer. Many claim that their resignation was due to the fact that harassment made their working conditions intolerable, or that they had been terminated for resisting the harassment. In the past, some employers have successfully defended themselves against discrimination suits involving termination by showing that the employee had lied to the employer about their qualifications or their past, and would never have been hired if the employee had been truthful. The ruling in Murillo permits an employee to bring a harassment suit under such circumstances.
The case involved an employee for Rite Stuff Foods, Isela Murillo, who claimed that she was propositioned and inappropriately touched by her supervisor. According to Murillo, she was suspended and eventually terminated in retaliation after she complained of the harassment to her employer. Rite Stuff asked the court to dismiss Murillo's suit after it discovered that she was an undocumented alien who had presented false documents when hired, arguing that she would have been terminated regardless of any alleged retaliation. The court held that while this "after acquired evidence" of misconduct by the plaintiff could remove liability for damages caused by her termination, it would be contrary to public policy to excuse an employer from all liability for the harassment. An employee's misconduct could not excuse sexual harassment occurring during her employment, the court reasoned, although an employer could, consistent with federal case law, avoid liability for lost wages incurred after the date of the employee's fraud.
This ruling is consistent with federal rulings which have permitted undocumented workers to pursue legal action under federal statues like the National Labor Relations Act. The United States Supreme Court has also ruled that an employee who is harassed or discriminated against may maintain a lawsuit, even if he or she is later found to have committed terminable misconduct. California Court Eases Burden on Employer Who Discharges Employee for Harassment or Other Misconduct
Following the lead of the California Supreme Court in its recent decision in Cotran v. Rollins Hudig Hall International, 17 Cal.4th 93 (1998), a California Court of Appeal upheld the dismissal of a wrongful discharge action filed by an employee on the basis that his employer acted in good faith when it terminated him for sexual harassment. Silva v. Lucky Stores, 65 Cal.App.4th 258 (1998). This decision may make it easier for employers who terminate employees after a full and fair investigation to obtain a dismissal of an action filed by an employee terminated for misconduct at earlier stages of litigation, avoiding the costly expense of trial.
The Silva case involved a lawsuit filed by a terminated store manager, Joe Silva, who charged he had been wrongfully discharged for sexually harassing two employees. The employees complained that he had improperly touched them in a sexual manner, one on the leg and another on the buttocks. Prior to his firing, he had worked for the company for 28 years. Silva claimed that any contact was incidental and not of an offensive or sexual nature, and denied touching the employee's rear.
A trained human resources representative was brought in to conduct an investigation. Prior to beginning the investigation, the representative consulted with legal counsel, who reviewed the investigation procedure to insure fairness and objectivity. Fifteen employees, including the accusers, were interviewed, and the interviews were recorded in writing, signed by the employees. Silva was interviewed three times.
The court found that the investigation had been reasonable, and had uncovered substantial evidence to support the employer's decision. Several witnesses corroborated that some touching had occurred. Although the lawyer for the terminated employee attempted to argue both that the evidence was insufficient and that the investigation was inadequate, the court found that there was no purposeful evasion by the employer of any key witnesses, and that evidence which the plaintiff thought was exculpatory was not persuasive.
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In the earlier Cotran case, the California Supreme Court ruled that a jury should be instructed to consider the good faith of an employer that terminates an employee after an adequate investigation, rather than make an objective decision of whether the misconduct actually occurred. The Silva decision takes the logic of Cotran one step further, by ruling that a court can, under proper circumstances, find that the employer has reached a good faith decision after a reasonable investigation, and dismiss the lawsuit well before trial. Silva represents a logical extension of Cotran and suggests a newfound reluctance by California courts to tie the hands of an employer who is faced with deciding the fate of an employee accused of misconduct, by having that decision later subjected to meticulous review by a jury. Rather than focusing on the factual issue of whether the employee actually committed the misconduct, the increasing focus is on whether the employer acted in good faith in reaching its decision, and had reasonable grounds for believing that the misconduct had occurred.
Employers are well advised, when confronted with accusations of employee misconduct, to conduct a thorough investigation using properly trained personnel. Care must be taken to insure objectivity of the investigator and to foster the appearance of fairness in the investigation. If properly conducted, the investigation process may be as important to the employer, for purposes of defending itself against a wrongful discharge suit, as the result of the investigation. Even more importantly, a properly conducted investigation will markedly improve the chances of reaching the appropriate conclusion. Harassment Claims Need Not Be Based On Recent Misconduct
A federal appeals court in California effectively extended the time for an employee to file a charge complaining of harassment in the workplace where the harassment is alleged to ultimately result in the resignation of the victim. Draper v. Rochester Inc., 147 F.3d 1104 (9th Cir. 1998).
Draper involved a female construction worker, Kateri Draper, who alleged that she was subjected to continuing harassment, including sexual comments, propositions, and other forms of unequal treatment. Although she alleged, vaguely, that this conduct continued until she resigned in December, 1994, the last specific incident she could allege occurred in approximately June, 1994.
Employees who sue their employers for sexual harassment under federal and state antidiscrimination statutes are required to file a charge with the appropriate governmental agency before bringing their claims to court. Draper's claim was based on the federal statute, which required that she complain to the EEOC of the harassment within 300 days of the incident. Draper filed a complaint with the EEOC in September of 1995, which was within 300 days of her resignation, but more than one year after the last specific incident of harassment. The employer asked the court to find that her delay in complaining to the EEOC barred her from bringing her lawsuit.
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The court decided that the complaint was timely, holding that the 300-day period should be measured from the time of resignation, rather than from the last specific incident of harassment. The court reasoned that in hostile environment cases, where a plaintiff alleges that the sexual harassment was so pervasive and severe as to affect the employee's ability to perform her job, the unlawful conduct is of a continuing nature and is not subject to separation into individual incidents. The court, however, distinguished claims of quid pro quo harassment, where specific requests for sexual favors are involved, and indicated that in those cases, the 300-day period would begin with the last specific incident, because sexual propositions are easier to pinpoint than are claims of a general uncomfortable work atmosphere.
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The impact of this case on employers is an employee's ability to sue her employer for acts that occurred well prior to her resignation or layoff. All the employee would be required to do is allege that the hostile environment "continued" through the time she left employment. This ruling poses problems for employers since an employee can rely on remote conduct to support a legal claim. The more remote in time the conduct, the more difficult it may be to locate witnesses and evidence. The best precaution for employers is the promulgation of a strict policy against sexual harassment or discrimination, and the investigation and documentation of any reported incidents of harassment or discrimination, indicating the company's response. Regardless of the time between the incident and the later claim, this will preserve evidence which may exonerate the company. State Legislature Bans The Use Of Genetic Tests By Employers
Governor Pete Wilson signed a law on July 3, SB No. 654, which amends the Fair Employment and Housing Act to prohibit discrimination against persons who have or who are predisposed to genetically caused disease. Senate analyses of the bill explain that there are currently at least 50 genetic tests available to determine whether an individual who appears to be healthy may be predisposed to a genetic disease. Examples of genetic dispositions that can and often are tested for are sickle cell anemia, Huntington's disease, breast cancer, colon cancer and Alzheimer's disease. Some employers, it is feared, will use these tests to screen their applicants in order to avoid future costs associated with unhealthy employees, or to avoid employees who may develop a disability. The statute is intended to guard against such blanket exclusion of employees based on their genetic characteristics.
Employers should avoid any testing that can reveal genetic predisposition. Although limited exceptions are made under the FEHA statute when a medical condition interferes with an "essential job function," that exception has always been narrowly defined. It is highly unlikely that a predisposition to genetic disease will ever meet the "essential job function" criteria, since a specific predisposition to sickness in a healthy person would not preclude them from performing essential job functions. |