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Defamation

Defamation is a legal right provided by California statute. See California Civil Code §§ 44, 45a and 46. Generally, it is a false statement of fact that is harmful to the person's reputation, is published, and is read or heard by someone other than the person being talked about. When the statement is made orally, it's called slander; a written statement is called libel.

In the employment context, defamation claims sometimes arise after the employment relationship ends and when a former employer is asked for a reference. Typically, the false statement is about the reasons why the employee was fired or the quality of the employee's performance. But defamation claims most often arise in the course of employment when there is an attempt to justify an unfair action taken against the employee, such as termination, demotion, failure to pay bonus award, or sometimes just company politics.

What are the elements of defamation?

The elements of a defamation claim are:

  1. A publication of a statement to a person/persons other than the plaintiff;
  2. The person/persons who heard the statement reasonably understood that the statement was about plaintiff; and
  3. Reasonably understand the defamatory nature of the statement; and
  4. The defendant failed to use reasonable care to determine the truth or falsity of the statement.

See CACI Jury Instruction 1704.

Note that the elements described above are elements that a private figure plaintiff must prove regarding defamatory statements of a private concern. This is the type of situation that most employment claims arise out of but there are special laws with respect to public figure plaintiffs (e.g., politicians, celebrities).

What damages need to be proved in a defamation claim?

In most cases, a plaintiff does not need to prove damages because the damages are inherent in the defamation. In other words, the harm caused to the plaintiff's reputation is already apparent. Inherently defamatory statements are known as defamation per se. In all other cases in which damages are not inherent in the defamation, a plaintiff will need to prove "special damages," which includes damage to reputation, emotional distress, humiliation, and anxiety.

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