Signed into law this month was an amendment to Section 47 of the Civil Code that adds three types of communications regarding sexual harassment as “privileged” communications—meaning they cannot be used as a basis for defamation claim—unless they are made with malice (i.e., statements made with complete disregard for the truth or false accusations made out of spite, ill will, or hatred towards the alleged harasser).
Amended Section 47 specifically protects as privileged communications:
- Reports of sexual harassment made by an employee to their employer based on credible evidence and without malice;
- Communications made without malice regarding the sexual harassment allegations between the employer and “interested persons” (such as witnesses or victims); and
- Non-malicious statements made to prospective employers as to whether a decision to rehire, or not, would be based on a determination that the former employee engaged in sexual harassment.
This is great news for employers as now they can report, investigate and discuss sexual harassment claims during an employee’s employment and may discuss it with that employee’s prospective employers that request a reference.
Despite this new law, it is in an employer’s best interest to discuss the matter with legal counsel before making any communication to anyone that relates to a claim or complaint of workplace sexual harassment.
The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.
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