New California Law Helps Protect Employers and Employees in Sexual Harassment Claims and Investigations

A new law recently signed by California Governor Jerry Brown will strengthen protections for employers, complainants, and witnesses for good faith discussions about sexual harassment claims and investigations. The new law, A.B. 2770, becomes effective January 1, 2019.
A.B. 2770 amends California Civil Code section 47 which designates certain communications as “privileged” for the purpose of defending against defamation claims. A “privileged” designation means a defendant who is accused of making a defamatory statement about a plaintiff may assert the privilege as a hedge against liability.
There are three new communication categories designated as privileged under the law. They are:

  1. Current and former employers – current and former employers who answer that the decision not to rehire a current or former employee is based on the employer’s determination that the employee engaged in sexual harassment, so long as the statements are made without malice;
  2. Complainants – employees who make sexual harassment complaints (written or oral) without malice and based upon credible evidence. (“Credible evidence” is not defined in the statute.); and
  3. “Interested persons”/witnesses – witnesses who respond without malice to an employer’s sexual harassment investigation questions.

This law has important implications for employers and employees. For employers, the law addresses the concern that employers who have knowledge of workplace sexual harassment may not disclose that information in responding to reference checks for fear of being sued for defamation. For employees, the law, while not discouraging individuals from reporting misconduct, aims to protect individuals from false accusations. The term “without malice” is written into the law and helps protect the accused against statements made with hatred or ill will, statements tending to show a willingness to injure the plaintiff, or statements that are knowingly false or made with reckless disregard for its truth.

Although California’s Anti-SLAPP statute has long served as a strong deterrent to many potential defamation claims, this law specifically provides a privilege for communications in the circumstances listed above and strengthens protections for good faith discussions about sexual harassment concerns.
Employers now have an additional defense against defamation claims, however, they should be cautious in relying on it in pre-litigation decision-making. Employers should make sure that representatives tasked with responding to employment inquiries are aware of the new privileges. Employers should also consider and discuss with their legal staff the circumstances under which statements concerning sexual harassment concerns should be divulged to third parties.