I.     Introduction 

In the employment context, defamation claims are typically brought by employees against their employers or former employers, stemming from one of three scenarios:  (1) negative remarks made by co-workers; (2) negative remarks made by the employer to co-workers or customers; or (3) negative remarks made by the employer while providing a job reference or information to a government agency such as an unemployment commission. The purpose of this paper is to present a survey of the law of defamation as it applies to the employment relationship, with a particular emphasis on those issues which are currently regarded as "hot" topics in employment defamation litigation.  The authors have assumed the reader to have a basic understanding of the common law of defamation and direct the reader to the overview of defamation materials presented earlier in this program. 

II.     Common Legal Issues in Defamation Claims Arising Out of the Employment Context 

        A.      Is the Remark or Statement at Issue Actionable as a Defamatory Statement of Fact or is it Non-actionable  
Opinion? 

In a seminal defamation case Gertz v. Robert Welch, Inc.,² the United States Supreme Court appeared to grant broad constitutional protection to statements of opinion.  According to the Court: 
 

Under the First Amendment there is no such thing as a false idea.  However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.  But there is no constitutional value in false statements of fact.3

In Milkovich v. Loraine Journal Co.,⁴ a case decided sixteen years later, the Supreme Court backed away from the assertions in Gertz that opinion was entitled to constitutional protection and referred to the paragraph quoted above as "dictum."⁵   In holding that statements of opinion were not necessarily entitled to First Amendment protection, the Court stated: "[w]e do not think the passage from Gertz was intended to create a wholesale defamation exemption for anything that might be labeled opinion.⁶"   The court concluded that because numerous "protections" are in place to safeguard free expression, there is no need to create a special privilege for opinion.⁷  
  
Since Milkovich, courts generally ask simply whether challenged expressions state or imply assertions of objective fact.  If they do, they are potentially actionable; if they do not, they are classified as mere opinion and are generally not actionable.  In Conkle v. Jeong,⁸  for instance, the defendant told third parties that the plaintiff "acted like she thought she was management," "was too radical," "was difficult as an employee," and "is more trouble than she is worth.⁹"   The Court applied the following test: 
 

The essential inquiry in a defamation action is whether a 'reasonable fact finder could conclude that the published statements imply a provable false factual assertion.'  The determination of whether a statement implies a provably false factual assertion is a question of law.10

  
Applying the foregoing test, the Court concluded there was no defamation.  In the Court's view, the defendant's statements about Conkle were ". . . statements of opinion because they do not imply a provably false factual assertion."¹¹  
  
The test enumerated in Conkle, or similar tests, have been used in many employment situations, including those in which employers direct negative remarks about employees to other employers or to third parties.¹²     
  
Increasingly, however, particularly where an employer's statements about a current employee come in the form of internal employee evaluations, courts appear to be granting broad protection to the employer without an inquiry into whether the employer's statements imply a provably false factual assertion.  These courts appear to be motivated by a desire to protect the process by which employers make judgments about an employee's performance without regard to whether those judgments can be neatly categorized as opinion or assertions of fact. 

In Dietz v. Bytex Corp.,¹³ for instance, an employee received an unfavorable performance review by her supervisor and was subsequently fired.  The employee brought a defamation action based on the supervisor's descriptions of her poor performance.  The court found that the supervisor's statements were not actionable.  The court stated: "Subjective assessments of an employee's job performance made by managers do not give rise to any actionable defamation claim."¹⁴ 

In Jensen v. Hewlett-Packard Co.,¹⁵  a California court approved the dismissal of a defamation action that was based on a negative employee evaluation.  The court stated: "[W]e express our strong judicial disfavor for libel suits based on communications in employment performance reviews."¹⁶  

Despite the reluctance of American courts to hold employers liable for defamation based on employee evaluations, employers should nevertheless tread carefully in two principal areas.  First, an internal employee evaluation, used by the company for purposes of promotion, demotion or termination and etc., may quickly lose the protections of Dietz, Jensen and other cases, if it is communicated to third parties.  While the employer no doubt has a keen interest in evaluating its employees, it clearly does not have the same keen interest in communicating those evaluations to third parties. 

Second, even with the protections outlined in Jensen, Dietz and similar cases, employers should be careful to make their employee evaluations factual.  Thus, rather than describing an employee as "incompetent,"¹⁷  employers should describe the performance deficiencies of its employees in a specific and factual manner.  Similarly, rather than referring to an employee as lazy or irresponsible, an employer's evaluation should simply list the days the employee was tardy, or absent without explanation.  In other words, the employer's evaluation should be factual. 

      B.      Where the Defamation Claim is Based Upon Employer Conduct, is the Conduct Actionable Either as a Defamatory "Statement" or as Publication of Defamatory Statement? 

Where an employee is subject to a search, detention, escort, or other physical conduct during the course of termination or events leading up to termination, the employee may attempt to challenge that conduct itself as defamatory -- particularly where the conduct is witnessed by co-workers.  The Restatement (2d) of Torts  
§ 568(2) provides that slander "consists of the publication of defamatory matter by spoken words, transitory gestures, or any other form of communication . . . "  Comment d to Section 568 provides that, in certain circumstances, publication may be made by conduct, as well as by more typical verbal communications. 
  
Although "conduct as slander" cases are relatively uncommon, courts generally recognize the theory that conduct can be as communicative as the spoken word.  In Caldor v. Bowden,¹⁸  Caldor's actions in having its employee led through its store in handcuffs in full view of co-workers was held to have provided clear evidence on which a jury could find Caldor liable for defamation, since such conduct plainly imputed theft.¹⁹   And in the seminal case of  General Motors v. Piskor,²⁰  an employee who was accosted by security guards, subjected to questioning and detention in a glass room visible to some five thousand employees, and who was then subjected to a search, was held to have an action against his former employer for slander per se.  Again, the defamation claim was based on the conduct in issue.  

More recently, the Maryland Court of Special Appeals explained that, "the mere act of an employer escorting an employee from the building after termination of employment, without more, [does not] constitute a defamatory publication."²¹   The plaintiff there argued that her employer's actions in escorting her from the workplace constituted slander.  The court disagreed, distinguishing the Piskor case on the grounds that William Hill Manor's conduct was not unusual and was not perceived as being out of the ordinary by co-workers.²²  

At least one jurisdiction, however, has specifically rejected the "conduct as slander" theory.  In Bolton v. Dept. of Human Services,²³  a discharged social worker unsuccessfully challenged as defamatory his former employer's conduct in physically guarding him while he packed his office  and left the office building, in full view of his co-workers.  The Minnesota Supreme Court reversed the lower court's decision which had permitted the defamation action,²⁴  holding that the Minnesota Supreme Court had never recognized defamation by conduct alone.²⁵  

These decisions tend not to clarify whether it is the conduct itself that is considered to be In other defamatory, or whether the conduct amounts to a publication of a defamatory inference.  In either event, the fact patterns above suggest that a former employee may attempt to pursue a defamation claim where his employer undertakes some physical action that arguably suggests serious wrongdoing, e.g., theft or other criminal deeds, on the part of the employee.  To the extent that an employer is faced with the need physically to detain, search, or remove an employee, handling such episodes as privately as possible may enable the employer later to defeat a publication claim. 

     C.     Was the Remark at Issue Made Within the Employment Context? 

A simple agency defense is often available in cases where the disputed remark was made by a non-supervisory employee.  In such cases, the employer can argue that the remark was neither authorized nor ratified, or that the remark was made outside the speaker's scope of employment and was not in furtherance of the employer's interests.²⁶   

In American Society of Mechanical Engineers v. Hydro Level Corp.,²⁷  a case involving a principal's liability for its agents' antitrust violations, the Supreme Court noted that, in accordance with Restatement (2d) of Agency § 247:  "[I]f an agent is guilty of defamation, the principal is liable so long as the agent was apparently authorized to make the defamatory statement."  In practice, such apparent authorization seems to be confined to remarks made by managerial employees in supervisory settings -- courts generally refuse to hold employers liable for defamatory remarks made by non-managerial co-workers. 

In J.P. Rouly v. Enserch Corp.,²⁸  the employer was not liable for negative remarks made by one of its salesmen to outsiders concerning a terminated employee's involvement in a kickback scheme.  The court set forth four factors to weigh in determining whether a statement was made within the scope of an employee's employment for purposes of attributing liability to his employer: (1)  was the employee's conduct primarily employment rooted? (2) was the employee's conduct reasonably incidental to the performance of his employment duties? (3) was the remark made on the employment premises? and (4) was the remark made during working hours?²⁹   The court went on to say that, since the speaker at issue was a traveling salesperson, it would focus on the employment duties test.  It noted that the speaker was not the employer's agent for conveying personnel decisions, and that he worked in a different department than the plaintiff.  The court also weighed the fact the  remark was made in a restaurant, and concluded that the remark was "the verbal equivalent of a frolic and detour in a company car."³⁰  

In Tischmann v. ITT/Sheraton Corp.¸³¹  an employee unsuccessfully sued his former employer for defamation following his termination for alleged sexual harassment where the harassment complainant -- his former co-worker -- told her boyfriend about the harassment allegations.  The court found that the former co-worker's remarks to her boyfriend were not made within the scope of her employment at ITT/Sheraton.   

Similarly, in Klein v. Boeing Co.,³²  the court held that an employee could not sue his former employer for defamation based on remarks made by a former co-worker to mutual friends.  The  court found that there was no evidence that the  remarks, which fueled rumors that Klein was discharged for being a child molester,  were made by the employee in furtherance of her employer's interests or in the scope of her employment.  Rather, the remarks were made in the context of a personal relationship. 

And, in Howcroft v. Mtn. States Tel. and Tel. Co.,³³  a terminated employee could not bring a defamation action based upon evidence of defamatory rumors concerning the bases for his dismissal absent evidence that the rumors were spread by an employee acting within the scope of his employment or in furtherance of a duty owed to his employer.³⁴  

Where a co-worker defames an employee through the posting of a picture, notice, or other document, the employer's liability will turn upon whether management had reason to know of the posting, and if so, how quickly and in what manner the posting was removed or otherwise addressed.³⁵  

Where defamatory remarks are made in the context of an internal investigation, resulting litigation typically centers upon the privilege issue.  [See  discussion, infra.]  But in Reaves v. Westinghouse Electric Corp.,³⁶  the court also considered and upheld an agency defense to the former employee's defamation claim based on remarks made by a former co-worker during the course of an internal investigation.  Plaintiff Reaves sued Westinghouse based on remarks made about her by another Westinghouse employee during an internal investigation into alleged wrongdoing by Reaves and the other employee.  The court held that Westinghouse could not be liable for the other employee's remarks: 
 

[I]f an employee makes a defamatory statement to an outside third person as to a matter falling within the general scope of his authority, the employer is held liable because the employee is acting for his employer.  Likewise, an employer would properly be held liable for a defamatory statement made by one of its employees conducting an internal investigation on the employer's behalf.  However, when an employee is interviewed during the course of an internal investigation as a potential participant in the alleged wrongdoing, he is speaking in his personal capacity; although his responses may be in furtherance of his own interest in retaining his employment, they bear upon his individual responsibility and are not in furtherance of his employer's business.... Otherwise, an employer could never conduct an internal investigation of alleged wrongdoing without substantial risk of almost inevitable liability if, as here, two employees are (at least after the fact) blaming one another for what occurred.37

  
     D.      Was the Remark at Issue "Published"? 

               1.     The Intra-Corporate Communication Issue 

Publication is an essential element of any defamation claim.  Where the disputed remark is made and repeated wholly within a corporation, an issue arises whether that intracorporate communication constitutes an actionable publication.  Some jurisdictions treat all employees of a corporation acting within the scope of their employment as one entity for agency purposes, such that a purely intracorporate communication does not constitute an actionable "publication."³⁸  

In these jurisdictions, purely intracorporate communications are not actionable.³⁹   Practitioners should note, however, that this position is increasingly unpopular, with some courts overturning their long-standing adherence to a no-publication rule in favor of the Restatement view, discussed below.⁴⁰  

Section 577 of the Restatement (2d) of Torts provides, at comment I, that purely intracorporate communications are  actionable publications -- in other words, a corporation should be viewed as an entity distinct from its employees.  On this view, the notion that a corporation and its agents are one and the same is disregarded as an unrealistic legal fiction that ignores how agents of a corporation interact with one another and their employers. 

A large number of jurisdictions follow this Restatement view, and hold that purely intracorporate communications can give rise to actionable publications.⁴¹   In the Simpson v. Mars case, supra,  the Nevada Supreme Court overturned its contrary position in Jones v. Golden Spike Corp.,⁴²  citing two central reasons for its decision to adopt the Restatement view:  first, it held that it was unfair to require a plaintiff to determine and allege the circumstances of communication within a corporation before she can even make out a prima facie case, since those circumstances are often uniquely within the knowledge of the corporation.  Second, the court explained that defamation law should provide an incentive for people not to spread lies that can injure others.  "Since most people spend a good part of their time, effort, and lives at their work, and have many colleagues, friends, and acquaintances there, to allow an employer to circulate lies around the workplace with impunity is particularly damaging."⁴³  

The rationale of the Supreme Judicial Court of Maine in the Staples case, supra¸ is typical of these jurisdictions adopting the Restatement view.  Staples, a computer specialist, claimed his supervisor had slandered him in the workplace.  Staples' claim was preceded by his own complaints to management about how his supervisor was running the department in which Staples worked.  These complaints were shared with other employees via an unsigned memo.  As might be expected, Staples' relationship with his supervisor disintegrated.  Eventually, the supervisor demoted Staples.  The next month Staples' supervisor concluded that Staples had erased computer files.  The supervisor discussed his concerns with the director of personnel and others who either might know what happened to the computer files or who were dependent on the sabotaged software.  Staples lost his job and sued.  With regard to Staples' defamation claim, the Maine Law Court explained that:  (1) it saw "no good reason to protect a corporation, as opposed to a partnership or individual enterprise"; (2) "damage to one's reputation within the corporate community can be as devastating as that outside"; and (3) "the defense of qualified privilege provides adequate protection" to the corporation.⁴⁴  
  
          2.     Overview of Compelled Self-Publication Doctrine in Context of Former Employee's Search for New Employment 

On occasion, an employer tells the employee the basis for the termination, but communicates that basis no further.  The employee's job search then compels the truthful employee to provide the stated reasons for the termination.  There has been a growing trend across the country to recognize a tort of compelled "self-publication" where the terminated employee is compelled to tell a prospective employer the stated reasons for the employee's termination. 

This concept is relatively new.  Until recently, it was generally held that publication occurs only when one communicates defamatory matter to "one other than the person defamed."⁴⁵   Many cases had held that defamation can occur only if there has been publication by the employer to a third person;  it has been held to be insufficient if the publication was made to the person defamed.⁴⁶  

In recent years a majority of jurisdictions which have considered the issue have now recognized a cause of action based on self publication.  This view has been called the "trend of modern authority,"⁴⁷  "a developing view,"⁴⁸  and is reportedly being adopted by "a growing number of jurisdictions."⁴⁹  

               a.     Cases Rejecting the Compelled Self-Publication Doctrine 

Some courts continue to refuse to accept the doctrine.  In doing so, most have simply relied on the traditional definition of publication and hold that self publication does not exist in the particular jurisdiction. 

Courts in the following jurisdictions have declined to adopt any concept of self publication when presented with the issue.  In some of these jurisdictions, a federal court declined to find that the applicable state court would adopt such a principle:  Alabama;⁵⁰  Illinois;⁵¹  Indiana;⁵²  Maryland;⁵³  New York;⁵⁴  Oklahoma;⁵⁵  Pennsylvania;⁵⁶  South Carolina;⁵⁷  Virginia,⁵⁸   and Washington.⁵⁹  

There has also been some negative legislative reaction to the principle.  The Minnesota legislature responded to its courts' adoption of the self publication principle by enacting a statute that provides that if an employee disputes what appears in a personnel file then the employee can provide his own statement which must also be included in the personnel file.  If this occurs, then there can be no cause of action for compelled self publication.⁶⁰  

The decisions which have refused to adopt the principle have been criticized and rejected by those jurisdictions adopting it.  As one commentator noted in citing many of the contra decisions: 

Although each of these courts declined to adopt a cause of action based on self-publication, their rationale does not, in much of today's litigation, support a ban on self-publication claims. Disclosures by prospective employees are not voluntary when prospective employers request the reasons proffered for prior terminations. Similarly, employers are not fault-free when they prepare termination letters with the knowledge that prospective employers will request these letters.  Furthermore, a complete ban on defamation claims supported by self-publication is undermined by the reasoning of early cases which foreshadowed the possibility that when the originator is at fault and no supervening causes exist, the defamed's self-publication should not act as a barrier to liability.⁶¹  
   
               b.     Cases Adopting the Compelled Self-Publication Doctrine 
     
Courts from the following jurisdictions have directly adopted the doctrine, or in the case of federal courts, have generally found that the applicable state court would do so: Arizona;⁶²  Arkansas;⁶³  California;⁶⁴  Colorado;⁶⁵  Georgia;⁶⁶  Iowa;⁶⁷  Kansas;⁶⁸  Maine;⁶⁹  Michigan;⁷⁰  Minnesota;⁷¹  Missouri;⁷²  Ohio;⁷³  Texas;⁷⁴  Vermont;⁷⁵  Wisconsin.⁷⁶  

In adopting the self publication theory, two rationales have emerged.  One rationale emphasizes the likelihood that the originator of the defamatory statement had reason to believe that the defamed person will be under a strong compulsion to disclose the contents of the defamatory statement to a third person, such as in a job reference.  Under this reasoning, courts inquire as to whether the employer-defendant knew or could have foreseen that the plaintiff would be compelled to repeat the defamatory statement.⁷⁷   The Colorado Supreme Court explained this rationale as follows: 

When the originator of the statement reasonably can foresee that the defamed person will be compelled to repeat a defamatory statement to a third party, there is a strong causal link between the originator's actions and the harm caused to the defamed person; this causal connection makes the imposition of liability reasonable.  See McKinney, 110 Cal. App. at 797-98, 168 Cal. Rptr. at 94. If publication could be based on the defamed person's freely-made decision to repeat a defamatory remark, however, the defendant would be held liable for damages which the plaintiff reasonably could have avoided.⁷⁸  
   
The second rationale imposes liability if the defendant employer knew or could have foreseen that the plaintiff was likely to repeat the statement.  This reasoning is grounded on foreseeability concepts more than on the compulsion aspects.⁷⁹  

The Restatement of Torts (Second) recognizes the principle, but does so more narrowly than many courts.  The general rule under the Restatement is found in  
§ 558 where the elements of defamation are listed as:  
 

(a) a false and defamatory statement concerning another; (b) an unprivileged publication to a third party; (c) fault amounting at least to negligence on the part of the publisher; and (d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.  (emphasis supplied).

However, the Restatement does recognize self publication concepts. First it extends liability for defamation not only to the originator of the defamatory statement, but also to others who repeat it.⁸⁰   Comment k to §577 of the Restatement provides as follows:  
 

k.  Intentional or negligent publication. There is an intent to publish defamatory matter when the actor does an act for the purpose of communicating it to a third person or with knowledge that it is substantially certain to be so communicated . . . .  It is not necessary, however, that the communication to a third person be intentional.  If a reasonable person would recognize that an act creates an unreasonable risk that the defamatory matter will be communicated to a third person, the conduct becomes a negligent communication.  A negligent communication amounts to a publication just as effectively as an intentional communication.

  
Comment m to §577 of the Restatement provides that: 
 

Recipient is the defamed person. One who communicates defamatory matter directly to the defamed person, who himself communicates it to a third person, has not published the matter to the third person if there are no other circumstances.  If the defamed person's transmission of the communication to the third person was made, however, without an awareness of the defamatory nature of the matter and if the circumstances indicated that communication to a third party would be likely, a publication may properly be held to have occurred.81

  
               c.     Application of the Compelled Self-Publication Principle 

When the principle has been adopted, the inquiry is not over.  A plaintiff still has some hurdles to overcome. 

First, the qualified privilege is generally equally applicable to self publications just as much as to publications made by the employer.  Some courts have recognized a compelled self publication claim only to dismiss it for lack of sufficient proof to overcome the qualified privilege.⁸²  
  
Second, the employee must show that he/she actually published the defamatory statement made by the employer.  It is not enough that the employee is concerned that he/she may have to later publish the statement.  The employee must demonstrate that he/she did publish the statement to a third person.⁸³ 
  
According to one Texas circuit court, the employee must show that he/she did not know that the statement being repeated was defamatory.⁸⁴  
  
Finally, in those jurisdictions adopting the compelled nature of the tort, the employee must also demonstrate actual compulsion.  The employee must show that he/she was forced by the circumstances to repeat the statement.⁸⁵  

               d.     Conclusion Regarding Compelled Self-Publication Doctrine 
   
From an employer's point of view, compelled self publication is a concept that requires the employer to be cautious in even giving reasons for termination to the employee.  An employer should be prepared to defend all reasons for termination, whether those reasons are expressed in the employee's personnel file or expressed directly to the employee. 

From the employee's viewpoint, the compelled self publication doctrine is another tool in the terminated employee's arsenal to overcome the "at will" nature of employment applied in most states.  If an employee does learn the reasons for termination and is forced to relay them, then the employee may very well have a valid cause of action.⁸⁶    
 
          3.     Did the Employee Consent to the Publication of the Remark at  Issue? 

A defense to defamation claims in the employment arena that arises frequently is that of consent to the defamatory matter.  If the employee consents to the making of a defamatory statement, that consent is a complete defense to the defamation claim.⁸⁷   An illustration in the Restatement indicates that where a discharged employee demands that the reason for his dismissal be made public, the employee has consented to the publication, even though it turns out to be defamatory.⁸⁸   Where, however, an employee makes "an honest inquiry or investigation" to "ascertain the existence, source, content or meaning of a defamatory publication," then it is not the same as consent and the employer may still be held liable if the defamatory matter is repeated.⁸⁹   
  
"The extent of the privilege is determined by the terms of the consent."⁹⁰   Consent may be express or implied.⁹¹   "Consent will be implied where the circumstances show that a plaintiff gave his implied consent to publication, the statement is relevant to the purpose for which that consent was given and publication is limited to those with a legitimate interest in its publication."⁹²   For example, a discharged employee gave implied consent for publication of the employer's reasons for terminating him by applying for unemployment benefits, which provided the employer an absolute privilege in reporting to the unemployment compensation commission the circumstances surrounding the discharge.⁹³   
  
There are numerous situations in which consent has been held to be a complete defense to a claim for defamation in the employment context.  In Royer v. Steinberg, at the request of the demoted school district superintendent, the school district board of trustees sent a confidential letter to the former superintendent stating the reasons for his demotion, one of which was his participation in forged campaign literature.⁹⁴   These statements were not made public until the former superintendent gave the letter to a local newspaper.  Therefore, the employee's "own publication of statements charging his involvement in the distribution of bogus campaign literature rendered such statements absolutely privileged, and his consent cannot be vitiated by a showing of defamatory character."⁹⁵    
  
In Litman v. Massachusetts Mut. Life Ins. Co., the plaintiff, a Mass Mutual insurance agent who had been terminated, "invited" or "precipitated" the release of defamatory matter by authorizing a prospective employer to contact Mass Mutual for a reference despite "having been told by Mass Mutual upon termination that he had `. . . very serious financial problems.'"⁹⁶   Litman, therefore, consented to Mass Mutual's statement to the prospective employer that the former employee "didn't pay his business bills."⁹⁷   
  
In Costa v. Smith, one employee (Smith) opined to another employee (Costa) at an office party that if the two joined forces, they could do even better than they had been doing.⁹⁸   Costa replied he would not consider Smith as a partner in business.  Smith demanded to know why.  Costa responded, in essence, that Smith was incompetent.  Costa's remarks were held to be privileged by consent, since they were in response to a direct request from Smith for information.⁹⁹  

Finally, in Bagwell v. Peninsula Regional Medical Center, 665 A.2d 297 (Md. App. 1995), a former employee was held to have consented to the release of his personnel file to his prospective employer, providing his former employer with an absolute defense of consent to the employee's attempted defamation action. 
  
Consent can be vitiated.  In Hughley v. McDermott, a candidate for employment consented to the publication of a psychological report.¹⁰⁰   However, at the time of consent, the candidate could not reasonably have been charged with knowledge that the report directly contradicted the earlier findings and report, or that the report would be defamatory.  The defendant, therefore, was unable to prevail on summary judgment on its consent defense.¹⁰¹     

     E.     Was the Remark at Issue Privileged? 
 
              1.     An Employer's Internal Investigation And The Risk of Defamation Claims 

Increasingly, employers are called upon to investigate complaints from employees regarding the conduct of other employees.  The burgeoning field of sexual harassment has given national publicity to intra-company investigations, but charges of sexual harassment are by no means the only source of intra-company investigations.  Complaints by employees that they have suffered intimidation at the hands of other employees (with the accompanying fears of violence in the workplace) are also the source of numerous intra-company investigations.  And, increasingly, charges that E-mail privacy or telephonic privacy are being violated by co-workers may force companies to undertake investigations. 

Although they are now commonplace, intra-company investigations raise a host of problems for the unwary employer.  Assume, for instance, that an employee makes a formal complaint to her employer that a fellow employee has sexually harassed her.¹⁰²   The laws of many states and the regulations of the Equal Employment Opportunity Commission ("EEOC") require the employer to investigate the charge, to do so promptly, to come to a conclusion regarding its validity, and, assuming it concludes the charge is valid, to take appropriate corrective action against the perpetrator.¹⁰³   If this investigation is not handled properly, however, the company may be charged with defamation by the accused employee.¹⁰⁴   Further, if the accused employee is wrongfully disciplined, he may have a defamation claim against both the employer and the supervisor who recommended the disciplinary action.  Moreover, the alleged perpetrator may retaliate against the accuser with a defamation claim.¹⁰⁵   This section will examine some of the legal issues, particularly those related to defamation, that arise in an employer-initiated investigation.  In addition, this section will suggest steps that an employer can take, in the course of an internal investigation, to avoid defamation claims against both itself and its employees. 
  
First, in a minority of the states, an intra-corporate communication, such as an accusation of sexual harassment, or statements made in the course of investigating such a claim, are not considered publications for defamation purposes.¹⁰⁶   Thus, in those states, an employee who is accused of sexual harassment by a co-worker has no recourse, at least not by way of a defamation claim, against either his accuser or against the employer.  The meaning and extent of this doctrine of intra-corporate immunity is explored in this paper in more detail at, supra. 
  
In the remaining jurisdictions, where intra-company communications are considered publications and thus where falsely accused employees can pursue defamation claims, the principal defense of both the employer and the accuser will likely be that the original complaint of sexual harassment and the company's investigation of that claim carries a qualified privilege.¹⁰⁷   In other words, although the complaint might be defamatory, the accuser as well as the employer may nonetheless escape liability if the statement was made in a privileged context.¹⁰⁸  
  
The qualified privilege has been defined as follows: 
 

Qualified privilege attaches to communications made (1) in good faith, (2) concerning a subject matter in which the speaker has an interest, right, duty or obligation, and (3) to a listener who has a corresponding interest, right, duty, or obligation in the subject matter of the communication.109

   
After the employer establishes the qualified privilege, the accused employee, if he is to prevail, must show that the privilege has been abused.¹¹⁰   Courts have developed two primary tests to determine if the qualified privilege has been lost.  Generally, the privilege is lost if the defamatory statement was either made with malice or was published to individuals that did not have an interest in the statement.  The latter is known as "excessive publication."¹¹¹  
  
The malice standard that is typically applied is "actual malice," which is defined as "publication of a defamatory statement with knowledge that it was false or with reckless disregard of whether it was false or not."¹¹²   A minority of jurisdictions require proof of common law malice, which is defined as "ill will or spite."¹¹³  
  
Thus, where an employee fabricates a claim of sexual harassment against a co-worker or against a supervisor, the fabrication may be treated as evidence of malice.¹⁰⁰    
  
Or, to take another example, if a supervisor receives a report of alleged wrongdoing by an employee and then proceeds to defame the same employee without interviewing the employee about the accusation, the failure to interview the employee may be treated as evidence of malice.¹¹⁵  

Or, to take another example, an employer may be found to have acted with malice when it persists in attempting to vindicate the claims of an unreliable accuser. Thus, where an employee had previously made claims of sexual harassment against her supervisor, none of which could be substantiated or which were affirmatively proven to be false by the employer, the employer's willingness to believe and act upon yet another similar claim might support a finding of malice.¹¹⁶   
  
As yet another example, if the employer's investigation shows contradictory facts, in other words, certain evidence substantiates the employee's claim of sexual harassment but other, equally credible evidence, tends to disprove the claim of sexual harassment, it may be malice to continue to repeat the charge.¹¹⁷  
  
Finally, if an employer makes a charge against an employee or repeats a co-worker's charge, without any factual basis to support the charge, some courts may find malice.¹¹⁸   In the Purgess case, for instance, the defendant employer, without any formal or informal investigation, concluded that the plaintiff, an anesthesiologist, was a danger to his patients and, accordingly, terminated the plaintiff.  Not satisfied with simply depriving the plaintiff of a job, the defendant thereafter repeated the charge to prospective employers of the plaintiff and also to a governing medical board.  In finding that the defendant acted with malice, the court seized upon the defendant's failure to conduct any sort of investigation, either before terminating the plaintiff, or before communicating the reasons for the termination to the plaintiff's prospective employers. 
  
As noted above, the qualified privilege may also be abused and therefore lost if the defamatory information is communicated beyond that group of individuals who have a bona fide interest in the information.  The trier of fact will generally determine whether a privilege has been abused through excessive publication.¹¹⁹  
  
The Restatement (Second) of Torts proposes the following test to determine if publication is excessive: 
 

Often the only practical means of communicating defamatory matter involves a probability or even certainty that it will reach many persons whose knowledge of it is of no value in accomplishing the purpose for which the privilege is given.  In this case, the publication is not excessive or an abuse of the privilege, if the importance of the interest involved, the gravity of the harm threatened to it and the inconvenience of any other means of communications make the publication reasonable.120

  
As an example of excessive publication, there are rarely circumstances under which an ex-employer would be justified in initiating contact with a former employee's new employer for the purpose of communicating defamatory information to that new employer.  In Lara v. Thomas,¹²¹  the Supreme Court of Iowa held that the defendant had abused what might otherwise have been its qualified privilege when, on its own initiative, it contacted the plaintiff's new employer and disclosed information it had learned about the plaintiff during an internal investigation. 
  
Applying the test proposed in the Restatement (Second) of Torts, the court's decision in Lara is not difficult to understand or predict.  First, because the employee no longer worked for the defendant, it is hard to conclude that the employer had an interest in communicating defamatory information to a third party.  Similarly, again because the plaintiff was no longer employed by the defendant, it is hard to imagine that the plaintiff posed a credible threat of harm to his ex-employer. 
  
From this general overview of the law of qualified privilege, a few important principles can be abstracted.  First, if an employee charges a co-worker or a supervisor with sexual harassment, the employer must take careful steps to protect the confidentiality of the charge.  Indeed, the employer should enforce a strict "need to know" policy for all allegations of sexual harassment.  The further the allegations are spread, the greater the employer's risk if the charges are found to be false.¹²²  
  
Unfortunately, from the employer's point of view, allegations can be spread in more ways than simply through the careless repetition of unfounded charges.  In General Motors Corp. v. Piskor,¹²³ for instance, an employee was detained by four security guards and questioned behind a plate glass window in a room that was visible to other employees.  In the course of the questioning, large numbers of employees passed by the room and observed the conduct of the security guards.  Although those passing employees could not hear what was being said, the court held that there was excessive publication of false charges (i.e., theft) because the employer allowed the guards to interrogate the employee in a manner that was visible to others.¹²⁴  
  
The Piskor case underscores the need to keep even the bare fact of the investigation confidential.  All involved must be reminded of the importance of confidentiality and the investigation must be performed in a discreet way.  Witnesses, for instance, should be interviewed behind closed doors and without a ceremony. 
  
A related point is that those who have witnessed alleged incidents of sexual harassment must be questioned in a careful manner by the employer's investigator.  The potential witnesses must of course be told enough information to put the charges in context, but they will generally not need to hear the entire story, and they certainly should not be told the story as if the allegations are true.  Indeed, the employer's investigators should be trained to tell potential witnesses that only allegations have been made, that no determination has been made regarding the validity of the allegations and that the purpose of the investigation is to determine the validity of the allegations. 
  
Further, for obvious reasons, the employer's investigation should be thorough.  If, for instance, the alleged perpetrator names several witnesses who can corroborate his story, those witnesses should be interviewed.¹²⁵   Of course, the accuser's witnesses should also be carefully interviewed.  The employer should be alert to inconsistencies in the statements of either the accuser or the perpetrator and should carefully weigh the credibility of both sides to the dispute.¹²⁶  
  
Once the investigation is complete, and assuming that the accuser's allegations are substantiated, the employer must again be careful not to communicate the results of the investigation beyond the directly interested parties.  The accuser should certainly be told that her allegations were substantiated and, because the perpetrator of the sexual harassment will require prompt discipline, he will quickly learn the results of the investigation.  Generally, however, the results of the investigation should not be communicated beyond the people directly involved and senior officials within the company who will need to determine the corrective action appropriate to the offense. 
  
When a charge of sexual harassment is substantiated, the employer may conclude it is wise to communicate its policy against sexual harassment more clearly and more forcefully to its employees.  An employer may, for instance, wish to hold additional training sessions or prepare memoranda or other communications emphasizing the company's policy against sexual harassment.  As a general matter, however, the employer should be careful not to link its decision to hold additional sexual harassment training to the individuals involved in the actual investigation or to the results of that investigation.¹²⁷  

               2.     Proving Actual Malice. 
  
One difficult burden for an employee to overcome is the burden of proving actual malice.  As noted elsewhere in this article, this is the standard most usually imposed on an employee claiming defamation.  After all, a conditional privilege applies in most communications related to employment issues, from job references to communicating reasons for termination.  When there is a qualified privilege, an employee will be faced with proving actual malice in order to overcome likely summary judgment motions, directed verdict requests, and new trial motions 
  
While the burden of proving malice is difficult, it is not insurmountable.  There are many ways to prove malice, and case law supports various approaches. 
  
The determination of the existence of actual malice involves a clash of competing interests.  On one hand there are a number of factors favoring the defendant.  As noted in Anderson v. Liberty Lobby, 477 U.S. 242, 257 (1986), "a court ruling on a motion for summary judgment must be guided by the New York Times 'clear and convincing' evidentiary standard in determining whether a genuine issue of actual malice exists.  That is, whether the evidence presented is such that a reasonable jury might find that actual malice had been shown with convincing clarity."  Also, any reviewing court must make an independent review of the evidence in the record to determine whether there is sufficient evidence of actual malice, at least when the plaintiff is a public figure or public official.  Bose v. Consumers Union, 466 U.S. 485 (1984) and Dombey v. Phoenix Newspapers, Inc., 150 Ariz. 476, 724 P.2d 562 (1986).  Finally, actual malice must be proved by clear and convincing evidence, at least when dealing with a public figure or public official.  New York Times v. Sullivan, 376 U.S. 254, 285-86 (1964). 
  
On the other hand, a determination of the actual malice involves, to a large measure, the state of mind of a defendant, and such determinations are generally not appropriate for summary judgments.  Hutchison v. Proxmire, 443 U.S. 111, 120 n.9 (1979); cf., Anderson v. Liberty Lobby, 477 U.S. 242 (1986); See, also, Currier v. Western Newspapers, Inc., 179 Ariz. 290, 855 P.2d 1351 (1993). 
  
In proving the existence of actual malice, it is clear that a plaintiff can rely on circumstantial evidence. Hunt v. Liberty Lobby, 720 F.2d 631, 643 (11th Cir. 1983); Cochran v. Indianapolis Newspapers, Inc., 175 Ind. App. 548, 372 N.E.2d 1211 (1978); Currier v. Western Newspapers, Inc., 179 Ariz. 290, 855 P.2d 1351 (1993). 
  
The definition of actual malice was enunciated in New York Times v. Sullivan, 376 U.S. 254, 279-280 (1964) and has been universally followed since: 
 

The constitutional rules require, we think, a federal rule that prohibits a public official128  from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice' -- that is, with knowledge it was false or reckless disregard of whether it was false or not.

  
This standard of reckless disregard or knowing falsity has been applied as the standard of proof necessary to overcome a qualified privilege.  Restatement of Torts, Second, §§ 600, 604. 
  
Although it coined the term, the U.S. Supreme Court has now held that the "better practice" is for a jury not to hear the term "actual malice" at all, but instead to receive instructions describing knowledge of falsity and reckless disregard.  Masson v. New Yorker, 501 U.S. 496, 111 S.Ct. 2419, 2430 (1991).¹²⁹  
  
There are only a handful of U.S. Supreme Court cases which have directly applied the actual malice rule, and they have provided mixed results.  Garrison v. Louisiana, 379 U.S. 64 (1964)¹³⁰  St. Amant v. Thompson, 390 U.S. 727 (1968),¹³¹ Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967),¹³² Harte Hanks Communications, Inc. v. Connaughton, 491 U.S. 657 (1989),¹³³ and Masson v. New Yorker, 501 U.S. 496, 111 S.Ct. 2419, 2430 (1991).¹³⁴ 
  
Factors Which Can Prove Actual Malice.  The courts have recognized and allowed various types of evidence in order to establish actual malice.  Generally, it takes more than one of the following factors in order to prove actual malice: 
  
(1) Spite and ill will; in Greenbelt Cooperative Publishing v. Bressler, 398 U.S. 6 (1970) it was held that a showing of bad motive or personal ill will, standing alone, was not sufficient evidence to prove malice.  However, since then, the courts have found that ill will is one factor which can be used with other evidence to prove actual malice. See, e.g., Currier v. Western Newspapers, Inc., 179 Ariz. 290, 855 P.2d 1351, 1355 (1993)("ill will may be circumstantial evidence of actual malice."); Stevens v. Sun Publishing Co., 270 S.C. 65, 240 S.E.2d 812 (1978) (preconceived plan "to get" plaintiff is evidence of actual malice); See, Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 667-68 (1989) (evidence concerning motive is relevant to actual malice). 
  
(2) The role of negligence or a failure to investigate; although courts have also held that a failure to investigate--acting negligently-- standing alone, is not evidence of malice,¹³⁵ it is also clear that evidence of negligence, with other factors, can be used as circumstantial evidence to prove malice.¹³⁶  
  
(3) Notice of disputed facts; a third type of evidence often used to prove malice occurs when the defamer has been put on notice of the falsity of the charges yet continues to publish or make false statements; such evidence, even standing alone, is sufficient to prove actual malice.  See Dombey v. Phoenix Newspapers Inc., 150 Ariz. 476, 724 P.2d 562 (1986) (reporter was given a detailed presentation of the facts and ignored them).  See, also, Selby v. Savard, 134 Ariz. 222, 655 P.2d 342 (1982) (defamer had been told by both his lawyer and his supervisor that his allegations lacked merit yet he continued to make them).  See, Masson v. New Yorker, 960 F.2d 896, 900 (9th cir. 1992) (recklessness may be found when there are obvious reasons to doubt the truth of a statement and those reasons are ignored). 
  
(4)  The role of fabrication; it has long been held that fabrication is evidence of malice.  St. Amant v. Thompson, 390 U.S. 727, 732 (1968) (malice is proved where a story "is fabricated by the defendant [or] is the product of his imagination"); Dombey v. Phoenix Newspapers, Inc., 150 Ariz. 476, 724 P.2d 562, 573 (1986). 
  
(5)  Failure to retract;  evidence of a failure to retract has been cited, with other evidence, as proof of actual malice.  Dombey v. Phoenix Newspapers, Inc., 150 Ariz. 476, 724 P.2d 562, 575 (1986);  Currier v. Western Newspapers, Inc., 179 Ariz.290,  855 P.2d 1351, 1355 (1993); Hinerman v. Daily Gazette Co., 188 W.Va. 157, 423 S.E. 260 (1992); Mahnke v. Northwest Publishing Co., 280 Minn. 328, 160 N.W. 2d 1 (1968). 
  
(6)  Lying; proof that a defendant lied, of course, is nothing more than saying that he made a statement knowing it was false.  As a result, courts have often found that lying proves malice.  See Starkins v. Bateman, 150 Ariz. 537, 724 P.2d 1206, 1211 (App. 1986); See Nevada Independent Broadcasting Corp. v. Allen, 664 P.2d 337, 344 (Nev. 1983) ("The fundamental inquiry, as one court has stated it, is 'did the defendant lie?'"). 
  
(7)  Altered quotations; in Masson v. New Yorker Magazine Inc., 501 U.S. 496, 517, 111 S.Ct. 2419 (1991), the court found that the use of material fabricated quotations by a reporter could prove malice. 
  
(8)  Deadlines and the need for haste; there are cases in the context of media defamation which have held that the reporter's deadline can be considered; when there is no "hot news" the courts have been more willing to find actual malice.  See, e.g., Masson v. New Yorker Magazine Inc., 501 U.S. 496, 111 S.Ct. 2419, 2435 (1991); and Harte-Hanks Communications v. Connaughton, 491 U.S. 657, 692 (1989). 
  
(9)  Highly unreliable sources of information; it has long been held that actual malice can be found "where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports."  St. Amant v. Thompson, 390 U.S. 727, 732 (1968).  See, Allioto v. Cowles Communications, 519 F.2nd 777, 780 (9th cir. 1975), cert. den. (1975) (actual malice proved by relying on a "notorious hoodlum" who could not be trusted, a "liar" and a "namedropper."). 
  
(10)  Inherent improbability; in St. Amant v. Thompson, 390 U.S. 727, 732 (1968), the Supreme Court also recognized that actual malice can be proved where the statements which are made "are so inherently improbable that only a reckless man would have put them in circulation."  See, e.g., Harte-Hanks Communications Inc. v. Connaughton, 491 U.S. 657, 692 (1989) (it was "highly improbable" that the plaintiff had ever intended to confront a judge with tapes to coerce him into resigning). 
  
(11)  A pattern of defamation; In Lewis v. Oliver, 178 Ariz. 330, 873 P.2d 668, 676 (App. 1993), cert. denied sub nom, Oliver v. Lewis, 115 S. Ct. 319 (1994) the Court recognized "a pattern of defaming and intimidating individuals who criticized" the defendant as evidence of malice. 
  
In summary, almost every employee suing for defamation will be required to prove actual malice and should plan accordingly.  While the burden is difficult, it is not insurmountable. 
  
In turn, employers should consider malice issue as one of their primary defenses, and should proceed accordingly.  They should consider motions for summary judgment on malice early in the case, and should not overlook the issue for directed verdicts and for appeals. 
  
     F.     Other Defenses. 
  
              1.     Preemption under Section 301 of the Labor 
                      Management Relations Act ("LMRA") 
  
Where the plaintiff was subject to a collective bargaining agreement during the course of her employment, a question arises whether her defamation claim against her former employer is preempted by Section 301 of the Labor Management Relations Act, 29 U.S.C. §151 et. seq.  In Lingle v. Norge Div. of Magic Chef, Inc.,¹³⁷  the Supreme Court clarified its prior holdings concerning federal preemption of state law claims under Section 301, ruling that a state law remedy is not preempted where the presence of the necessary elements of the state law claim can be ascertained without recourse to interpretation of the applicable collective bargaining agreement ("CBA").  Courts generally translate Lingle to mean that defamation claims should not be preempted where the disputed remarks were made outside the context of a contractually-required grievance or other disciplinary process, and did not involve a disciplinary measure required by the CBA.¹³⁸  
  
In Delco Remy, the plaintiff's defamation claims were not preempted where comments about the plaintiff were circulated in corporate documents pertaining to eliminating waste and inefficiency.  Delco Remy argued that the plaintiff must address his complaint through the CBA's grievance procedure.  The court held that the preemption doctrine does not preclude the employee from filing any state tort claims simply because the events at issue occurred in the workplace.   The plaintiff was not challenging any disciplinary action, alleging any violation of the CBA, nor implicating any of his rights under the CBA.¹³⁹    
  
Where the defamation claims stem from statements made during the course of a disciplinary investigation or other process governed by a CBA, they will be preempted.  Thus, in DeCoe v. General Motors,¹⁴⁰  the plaintiff's defamation claims based upon remarks that he committed sexual harassment were preempted, since the issue inevitably would arise whether the remarks were privileged due to a sexual harassment policy incorporated into the applicable CBA, requiring the union and employer to identify and resolve sexual harassment complaints. 
  
And in Furillo v. Dana Corp.,¹⁴¹  the plaintiff's defamation claims were preempted where his claims were based upon statements made during a contractually-required disciplinary investigation, since the privilege element of his defamation case would require an analysis of the CBA's grievance procedures.  Similarly, in Stallard v. B-line Systems,¹⁴²  a plaintiff's defamation claim based on a published letter detailing the reasons for his discharge was preempted where the letter was an integral part of a contractually-required dismissal process.  In Bagby v. General Motors,¹⁴³  the plaintiff's defamation claim was preempted where the claim was based upon the employer's security guard escorting the plaintiff out of the plant following his suspension during an investigation into allegations that he pawned the employer's property, since the applicable CBA controlled such disciplinary situations.  Finally, in Edelman v. Western Airlines, Inc.,¹⁴⁴  a former airline employee's defamation claim based on her employer's alleged failure to adequately investigate a theft charge against her was held to be preempted by Section 3 of the Railway Labor Act, since the claim required an analysis of discharge procedures under the applicable CBA. 
  
                2.     Workers Compensation Exclusivity 

Employers often invoke the exclusivity clauses of their states' workers compensation statutes in an effort to bar former employees' tort claims.  While such exclusivity provisions often bar torts such as emotional distress claims,¹⁴⁵  courts consistently hold that they do not bar former employees' defamation claims.¹⁴⁶   These decisions hold that defamation involves an injury to one's reputation, and not to one's body or mental health as contemplated by workers compensation statutes' exclusivity clauses.  Moreover, in the Garraghty case, the Virginia statute required a "sudden" workplace injury, whereas the damage caused by an alleged defamation was held to be gradual in nature. 
  
     G.     Special Problems Arising In the Context of Providing Job References 

              1.    Overview of considerations when providing job references and performance evaluations 
 
Employers have both practical and legal motivations for exercising extreme caution in determining what information to disclose about former employees, as well as what information to seek concerning prospective or current employees.  Issues relating to defamation arise frequently in circumstances where employers provide reference information about former employees.  Indeed, defamation is an alarmingly popular vehicle by which disgruntled former employees sue employers who have provided job references or evaluations the employee considers to be negative. 
  
Employers who are too detailed, offer too many factual statements or opinions, or proffer information not directly requested may expose themselves to liability for defamation and related torts.  Employers who provide too little or inaccurate information, on the other hand, may be held liable for intentionally misrepresenting or omitting information about the former employee which should have been disclosed.  Because of these concerns and the growing popularity of defamation suits in the employment context, many employers refuse to give employment references, opting instead to restrict the information they provide to the employee's dates of employment and salary.  Likewise, attorneys routinely advise their employer clients to adhere to a "no comment" policy regarding termination of an employee, since employers are under no affirmative legal duty to provide information regarding former employees.  As will be discussed below, there are both benefits and drawbacks to such policies. 
  
Traditionally, defamation actions brought by former employees arise in the context of unfavorable reference letters or similar communications to third parties respecting the employee's job performance.¹⁴⁷   Such suits have arisen both where the publication was made to a prospective employer and where the publication was made to other third parties such as reporters and customers.¹⁴⁸   Thus, for example, an employer was sued for defamation when he stated to two separate individuals who had falsely identified themselves as prospective employers, that a former employee acted like she was management (but she was not), that she led a strike against the employer but the union turned against her because she was too radical, that there were customer complaints, and the former employee was more trouble than she was worth.¹⁴⁹   The employer prevailed on summary judgment because the statements were found to be true, non-actionable opinion because they did not imply a provable assertion of fact, and were privileged.¹⁵⁰   As to the conditional privilege, the court held that "where comments are made by a former employer to a prospective employer who requests information regarding the employee, the communication is presumed to be privileged."¹⁵¹  
  
The Conkle case is noteworthy not only because of its discussion of the elements of and defenses to a defamation claim founded on an employment reference, but also because it reflects the growing trend of reference checkers who, acting on behalf of job seekers, contact former employers and transcribe what the former employers say about the job seeker when asked for a reference.¹⁵²   Although these reference checkers often lead the former employer to believe they are prospective employers (by saying, for example, that they have an application regarding a former employee), they are not -- they are retained by the job seekers to ascertain what their former employer is saying about them, sometimes leading to a defamation suit.¹⁵³   The viability of such a suit is questionable, however, given the many strong defenses which exist under these contrived circumstances.¹⁵⁴     
  
Defamation cases arising from employment references are governed by the same common law and constitutional principles and defenses that are applicable to defamation suits generally.  Thus, the defenses of truth and opinion are often applicable to claims based upon job references or performance evaluations.  This section of the paper, however, will focus on applicable privileges and statutory provisions which are particularly relevant to defamation claims based upon employment references.  
  
Ordinarily, common law absolute privileges will be inapplicable in the context of employment references.  Under a few circumstances, however, the absolute privilege might apply.   For example, statements made during a grievance proceeding conducted under a collective bargaining agreement may be absolutely privileged.¹⁵⁶   Also, in states that extend the absolute privilege to quasi-judicial administrative proceedings (such as before a state unemployment agency), job evaluations discussed during such proceedings will be absolutely protected.  
  
The qualified or conditional privilege, on the other hand, initially protects virtually all employment references.   The Restatement describes two types of circumstances that are most relevant to the conditional privilege in the employment reference context:  (1) where statements are made for the protection of the interest of the recipient or a third person; and (2) where statements are made to protect a "common interest."¹⁵⁷   These conditional privileges provide protection only so long as they are not abused.¹⁵⁸    
  
Conditional privileges generally apply to the exchange of reference information because the publisher's and recipient's "common interest" in the information, or the recipient's interest in receiving the information, is deemed sufficiently important that the qualified privilege will protect the exchange.  Thus, for example, where a city employee sued various officials and the city for alleged defamatory remarks made to prospective employers regarding the reasons for his termination, the remarks were held to be privileged under the principles enunciated in § 595 of the Restatement.¹⁵⁹   As the court noted:  "In conforming with the Restatement's position, a number of states have recognized a qualified privilege in the giving of employee references in response to a request from a prospective employer."¹⁶⁰    
  
Some states have further refined the circumstances under which a defamation suit may be brought based upon employment references or evaluations.  For example, California courts have expressed "strong judicial disfavor for libel suits based on communications in employment performance reviews" and have limited libel claims based on performance evaluations to circumstances where the "evaluation falsely accuses an employee of criminal conduct, lack of integrity, dishonesty, incompetence or reprehensible personal characteristics or behavior."¹⁶¹   Furthermore, California and other states have codified a qualified privilege for an employer to make a communication to a requesting employer regarding the job performance and qualifications of a job applicant.¹⁶²  
  
While courts generally agree that the conditional privilege applies to job references in the first instance, there is substantial disagreement and divergence with respect to the circumstances under which the privilege may be lost.  Indeed, courts have articulated vastly different, often conflicting standards and tests for determining when the privilege has been abused.  The Restatement enumerates several factors which may constitute abuse of the privilege, including (1) the publisher's knowledge or reckless disregard of the falsity of the statements; (2) publication with an improper purpose; (3) "excessive" publication (e.g., to persons other than those to whom the publication is important); and (4) publication not reasonably believed to be necessary to accomplish the purpose for which the occasion is privileged.¹⁶³    
  
These various types of abuses have often been lumped together under the general label of "malice."  As Prosser and Keeton instruct: 
 

[T]he qualified privilege will be lost if the defendant publishes the defamation in the wrong state of mind.  The word 'malice,' which has plagued the law of defamation from the beginning, has been much used in this connection, and it frequently is said that the privilege is forfeited if the publication is 'malicious.'164

  
Actual "malice" sufficient to defeat the qualified privilege under California law is established by "a showing that the publication was motivated by hatred or ill will . . . or by a showing that the defendant lacked reasonable grounds for belief in the truth of the publication."¹⁶⁵    
  
In Sigal Construction Corp. v. Stanbury, the conditional privilege was held to have been abused when the employee who gave the reference acted "with 'such gross indifference or recklessness as to amount to wanton and willful disregard of the rights' of" the former employee.¹⁶⁶   The company employee who gave the negative reference had never worked with or supervised the former employee, based his "reference" solely on unsubstantiated and vague rumor, and did not tell the prospective employer the basis of his reference or that he had never worked with or supervised the former employee.¹⁶⁷  
  
For employers, the inconsistencies in the standards for determining when the conditional privilege has been abused when providing job references are cause for considerable concern.  Employers have no clear guidance on which legal standards will apply to their conduct and the degree to which they may be exposed to liability for defamation arising from the provision of references.  The result of this uncertainty is the ever-increasing "no comment" reference policy.   
  
Another consideration for employers asked to provide job references is state "anti-blacklisting" statutes, which are in place in a majority of states.¹⁶⁸   These statutes prohibit employers from taking certain actions to impede the job prospects of former employees.  Such legislation was originally enacted to prevent employers from quashing labor organizations by creating lists of pro-union workers that should not be hired.  The language of the statutes ordinarily establishes criminal penalties for conspiring to prevent a discharged employee from obtaining new employment, without defining specifically the prohibited conduct.¹⁶⁹   Thus, a literal reading of many of the statutes appears broad enough to prohibit unfavorable employment references.  While certain of the anti-blacklisting statues have expressly exempted employment references from their coverage,¹⁷⁰  not all have done so.   
  
Another area of concern for employers is the extent to which they advise employees of the reasons for termination.  Among other things, an employer who tells an employee the reason for termination risks a later claim by the employee that he was compelled to republish that reason to prospective employers.¹⁷¹     Compelled "self-publication" is discussed in greater detail above. 
  
An employer's decision as to how much, if any, information to provide about a former employee is a difficult one, at best.  The above discussion explores some of the pertinent considerations that should be taken into account in making this decision.  The social costs of "no comment" reference policies should also, however, be considered.  Among other things, such policies restrict job mobility, deprive employers the full panoply of information regarding the skills and qualifications of their job applicants, potentially gives less qualified applicants with a reference an unwarranted advantage over more qualified applicants without a reference (since employers are generally more likely to hire an applicant with a reference), and may increase the risk of a claim for negligent hiring if the applicant turns out to be incompetent or a safety risk.  Indeed, depending on the nature of the employment at issue, the lack of an appropriate investigation into a prospective employee's background can expose the hiring employer to significant third-party liability. 
  
          2.     Retaliation Claims Under Title VII of the Civil 
                  Rights Act 
 
In Robinson v. Shell Oil Co.,¹⁷²  the Supreme Court held that former employees are included within the term "employee" as provided at Section 704(a) of Title VII of the Civil Rights Act of 1964 governing retaliation claims.  As a consequence, a former employee can bring a Title VII retaliation claim against his former employer for giving him a negative job reference after he has filed a Title VII charge against that former employer, alleging that the negative reference was given in retaliation for the employee's prior filing of a discrimination charge.   

The Robinson Court first determined that the term "employees" in Section 704(a) of Title VII was ambiguous as to whether it included or excluded former employees.  The Court then found that many sections of Title VII contemplate that former employees will make use of Title VII's remedial mechanisms.¹⁷³  
 

Insofar as §704(a) expressly protects employees from retaliation for filing a "charge" under Title VII, and a charge under §703(a) alleging unlawful discharge would necessarily be brought by a former employee, it is far more consistent to include former employees within the scope of "employees" protected by §704(a).174

  
Most important, the Court was persuaded by the EEOC's amicus argument that a contrary holding could undermine Title VII's effectiveness by allowing employers to circumvent §704(a) by simply terminating an employee prior to taking retaliatory measures.¹⁷⁵   In light of the Robinson decision resolving the prior split in the circuit courts on this issue, employers will need to exercise particular care when offering a reference for any former employee who has previously filed a Title VII discrimination charge. 
  
However, the holding of the Robinson case may also be used by employers defensively.  Employers could argue that an employee's common law defamation charge is preempted if the employee's defamation claim is based on a negative job reference following the employee's filing of a Title VII charge.  In many jurisdictions, a Plaintiff cannot pursue a common law remedy where it has been replaced with a statutory cause of action.¹⁷⁶  

               3.     The Issue of Negligent Job References and 
                       Disclosure of Employee Abuse or Misconduct 

In Randi W. v. Muroc Joint Unified School District,¹⁷⁷  the California Supreme Court recognized a common law duty of care owed by employers to prospective employers and third persons when providing job references or recommendations.  The court held that employers have a duty not to misrepresent facts in describing their former employee's qualifications and character, if the misrepresentation presents a substantial and foreseeable risk of physical injury to the prospective employer or third persons.¹⁷⁸   In Muroc, an administrative employee obtained a letter of recommendation from the School District when seeking new employment with a college placement service.  The School District unconditionally praised him and did not reveal the prior charges of sexual misconduct against him.  After he went to work for the college placement service, the employee assaulted a student, who then successfully sued the  School District for negligence.   
  
Employers are not under an affirmative duty to provide any information regarding a former employee, at least in the absence of some special relationship.  However, once the employer has undertaken to provide some information, it can be held liable for providing inaccurate, or for omitting, information.¹⁷⁹   And, where an employee poses a potential threat to the physical safety of others, due to incidents of abuse or other misconduct, California now imposes a duty on employers to accurately convey that information in job references and recommendations.  The Muroc Court noted that California's statutory qualified privilege for non-malicious communications regarding a job applicant's qualifications would adequately protect employers from tort liability in most circumstances.¹⁸⁰  
  
The Muroc case appears to be highly unusual in light of the defendant employer's conduct in (1) volunteering to provide a prospective employer with a detailed reference without having been asked to do so; and (2) misrepresenting specific incidents and characteristics relating to the subject employee which were obviously highly relevant to the employee's fitness for employment involving children.  Nonetheless, Muroc serves as a reminder of the need for great caution on the part of employers when offering a reference for an employee with a record of abusive misconduct.       
   PETER BENNETT   
Peter Bennett is president of the Portland, Maine law firm of Bennett and Associates, P.A.  Mr. Bennett represents management in labor law and employment matters throughout New England and upstate New York.  These matters include union campaigns, NLRB and other government agency proceedings, contract negotiations, human rights proceedings, employment litigation, arbitration hearings (against unions and individuals), and other matters.  Mr. Bennett also serves as an expert witness in employment law cases and has been involved in the publication of TIPS monographs on sexual harassment (1994), litigating employment tort cases (1995) and the insurance coverage of employment disputes (1996).  He is a frequent speaker on these and other topics which relate to his practice and teaches Personnel Law and Labor Relations Law courses through the University of Southern Maine. 

Mr. Bennett received an A.B. degree, with honors, from Harvard  College, a J.D. degree, with honors, from Boston University School of Law and an M.B.A. degree from Boston University Graduate School of Management.  After graduation he practiced labor law with Fulbright & Jaworski in Houston, Texas. 

Mr. Bennett is Immediate Past Chair of the TIPS Employer-Employee Relations Committee and is the current Chair of the TIPS Public Relations Committee as well as a member of the TIPS C.L.E. Board and Communications Coordinating Group.  He is also a member of and is active in other Bar groups. 

Mr. Bennett is also quite active in community affairs including United Way, St. Joseph's Manor (Chairman of the Board), Junior Achievement of Maine (Board of Directors), Boston University School of Law (Executive Committee) and Phillips Academy. 
   KRAIG J. MARTON 

Kraig Marton received his Bachelor of Science degree in physics from Carnegie Melon University in Pittsburgh in 1971, and then graduated with honors from Arizona State University Law School in 1974.  His practice is in Phoenix in a two-person law firm where he primarily practices in the areas of defamation, employment law, and health care law (representing physicians). 

He primarily represents individual plaintiffs.  In his defamation practice, he has brought suits against most of the major media in the state of Arizona, and is responsible for many of the noteworthy defamation decisions issued from Arizona Courts in the last fifteen years.  He has also pursued the national media on occasion. 
   
 He has spoken widely about defamation law and the First Amendment, and wrote the chapter on defamation law in a book published in 1996 by the Arizona State Bar, The Arizona Employment Law Handbook.  He is listed in Woodward and White's book, Best Lawyers in America, as one of the seven "best" lawyers in Arizona in the field of First Amendment Law and is the only Arizona lawyer listed who represents individuals. 

In his employment practice, he primarily represents employees.  He is a member of the National Employment Lawyer's Association, the Labor and Employment Law Section of the American Bar Association, and has served on the Executive Counsel of the State Bar Labor Law Section.  He has actively litigated many employment cases, including wrongful discharge, sexual harassment, and discrimination of all kind, and has been a frequent speaker on employment law issues at various seminars. 

He recently ended a two year term on the Arizona State Bar Board of Governors. 

   JULIE M. WARD   
Julie Ward is a partner in the Los Angeles office of Arnold & Porter, where she is a member of the firm's Litigation Practice Group.  She handles complex litigation matters in federal and state courts, including actions involving employment law, defamation, copyright, entertainment, business torts, contract disputes and professional negligence.  Ms. Ward also regularly counsels clients with respect to employment and related matters.  Ms. Ward is a member of the California, American and Loss Angeles County Bar Associations.  She is a 1984 graduate of Boalt Hall School of Law, University of California, Berkeley, and a 1977 graduate, with honors, of the University of California at Santa Cruz. 
 
  End Notes ¹   Mr. Bennett wishes to acknowledge the efforts of his associate, Julie Boesky, in the preparation of this paper.  
²   418 U.S. 323 (1974).  
³   Id. at 339-40.  
⁴   497 U.S. 1, 18-22 (1990).  
⁵   Id. at 18.  
⁶   Id.  
⁷   Id., at 21.  
⁸   853 F.Supp. 1160 (N.D. Cal. 1994), aff'd, 73 F.3d 909 (9th Cir. 1995), cert. denied, 136 L.Ed.2d 19 (1996).  
⁹   853 F.Supp. at 1168.  
¹⁰  Id.  
¹¹  Id. at 1169 (citations omitted).  
¹²  E.g., Campanelli v. Regents of University of California, 44 Cal.App. 4th 572 (1996) (court held that explanation given by supervisor to the press about reason plaintiff was fired was not intended to be a factual assertion and was, therefore, not actionable). 
¹³  2 Mass.L.Rptr. 41, 1994 WL 879690 (Mass. Sup.).  
¹⁴  Id., at *4.  
¹⁵  14 Cal.App.4th 958, 565 (1993).  
¹⁶  Id. at 963.  
¹⁷  Kelleher v. Corinthian Media, Inc., 208 A.D.2d 477, 617 N.Y.S.2d 726 (1994).  
¹⁸  Caldor v. Bowden, 330 Md 632, 654, 625 A.2d 959, 969 (Md. App. 1993).  
¹⁹  625 A.2d at 969.  
²⁰  27 Md. App. 95, __, 340 A.2d 767, ___ (Md. Ct. Spec. App. 1975), rev'd other grds, 352 A.2d 810 (Md. 1976).  
²¹  Gay v. William Hill Manor, Inc., 109 Lab. Cas.  55927, ___, 3 IER Cases (BNA) 744, 746 (Md. Ct. Spec. App. 1988).  See also Davis v. John Crane, Inc.,  633 N.E.2d 929 (Ill. App. 3d 1994) (summary judgment for employer in defamation case based on employer's actions in escorting employee off premises with a security guard where action was reasonably susceptible to an innocent interpretation).  
²²  See also  Zechman v. Merrill Lynch, Pierce, Fenner & Smith, 742 F.Supp. 1359, ____, 5 IER Cases (BNA) 1665, 1674 (N.D.Ill. 1990)(recognizing that plaintiff stated potential defamation claim where, in plain view of others, employer, inter alia, paid unprecedented surprise visit to office, remained in office while plaintiff packed, refused to allow plaintiff to speak to co-workers, and physically escorted him out of building); Krochalis v. Ins. Co. of North America, 629 F.Supp. 1360, 1368 (E.D. Pa. 1985) (recognizing that use of security guards might be defamatory if guards' actions suggested that employee had engaged in criminal conduct); Kolczynski v. Maxton Motors Inc., 538 N.E.2d 275, __, 4 IER Cases (BNA) 656, 657 (Ind. App. 1989) (recognizing possibility that employer's "dramatic pantomime" can constitute slander, but not on facts of case where employer's search of the plaintiff's car was performed privately).   Accord, Marshall Fields Stores, Inc. v. Gardiner, 859 S.W.2d 391, 396 (Tex. Civ. App. 1st Dist. 1993) (acknowledging possibility of publication of defamatory matter by conduct).  
²³  540 N.W.2d 523, __, 11 IER Cases (BNA) 369, 371 (Minn. 1995).  
²⁴  10 IER Cases (BNA) 413, 418-419 (Minn. App. 1995).  
²⁵  11 IER Cases (BNA) at 371.  
²⁶  In some jurisdictions, an employer's exposure for defamation liability based upon remarks made by its employees is governed by statute.  See, e.g., Lawson v. Heidelberg Eastern,  872 F.Supp. 335, 339 (N.D. Miss.), aff'd w/out op., 70 F.3d 1269 (5th Cir. 1995) (holding that a corporate employer cannot be liable for the words of its employees under the Mississippi Actionable Words Statute, Miss. Code 1972 §95-1-1, unless the words at issue were spoken at the employer's command).  
²⁷  456 U.S. 556, 566, 102 S.Ct. 1935, 1942 (1982).  
²⁸  835 F.2d 1127, 1130-1132 (5th Cir. 1988).  
²⁹  835 F.2d at ___.  
³⁰  835 F.2d at ___.  
³¹  882 F.Supp. 1358, 1371 (S.D.N.Y. 1995).  
³²  847 F.Supp. 838, 843, 149 LRRM 2610, 2614, 3 AD Cases (BNA) 158, 161 (W.D.Wash. 1994).  
³³  712 F.Supp. 1514, 1522 (D.Utah 1989).  
³⁴  See, also, Hensley v. Armstrong World Industries, Inc., 798 F.Supp. 653, 657-658 (W.D. Okl. 1992) (employer not liable for remark made by co-worker about bases for plaintiff's discharge where co-worker was not acting within scope of employment when she published remark to manager of pizza parlor);  O'Brien v. A.B.P. Midwest Inc., 814 F.Supp. 766, 772-773 (D.Minn. 1992) (employer only liable if defamation occurred within scope of speaker's duties and where speaker's conduct furthered employer's interests, and fact that remark is made while at work, alone, is insufficient evidence to establish that remark was made within scope of employment);  Hawthorne v. Washington Metro Area Transit Authority, 702 F.Supp. 285, 288 (D.D.C. 1988) (plaintiff failed to allege that co-workers statements were made within course of their official duties).  Compare Technology Consortium Inc. v. Digital Communications, 757 F.Supp. 197, 201 (E.D.N.Y. 1991)(sales representative stated defamation claim against former employer where his co-worker visited one of his most important customers and stated that sales representative had stopped selling the corporation's product).  
³⁵   See, Restatement (2d) of Torts  §577(2);  Tackett v. General Motors Corp., 836 F.2d 1042, 1046-1047 (7th Cir. 1987), appeal after remand, 937 F.2d 1201 (7th Cir. 1991) ( where signs stated "Tackett, Tackett, what a racket," referring to employee's involvement in purchase order scandal,  GM did not adopt contents of larger sign posted for only three days, given length of time required for senior management to obtain notice in such a large corporation, but may have adopted contents of smaller sign posted for over six months).  
³⁶   683 F.Supp. 521, 526, 51 FEP Cases (BNA) 107, 110 (D.Md. 1988).  
³⁷  683 F.Supp. at 526.  
³⁸  See, e.g.,  Starr v. Pearle Vision, Inc., 54 F.3d 1548, 1552-1553 (10th Cir. 1995) (citing 12 Okl. St. Ann. § 1442);  Messina v. Kroblin Transp. Systems Inc., 903 F.2d 1306, 1309 (10th Cir. 1990) (applying Oklahoma law);  Puckett v. Cook, 864 F.2d 619, 621 (8th Cir. 1989);  DeLeon v. St. Joseph Hospital, Inc., 871 F.2d 1229, __ (4th Cir.), cert. denied, 439 U.S. 825 (1989) (Maryland law);  Halsell v. Kimberly-Clark Corp., 683 F.2d 285, 288-289 (8th Cir. 1982) (applying Wisconsin law), cert. denied, 459 U.S. 1205  (1983);  Cabble v. Claire's Stores, 919 F.Supp. 397, 402 (M.D. Ala. 1996);  Agee v. Huggins, 888 F.Supp. 1573, 1580 (N.D. Ga. 1995) (citing O.C.G.A. §51-5-1(b));   Hensley v. Armstrong World Industries Inc., 798 F.Supp. 653, 657 (W.D. Okla. 1992);  Johnson v. Delchamps Inc., 715 F.Supp. 1345, 1347 (M.D. La.), aff'd, 897 F.2d 808, (5th Cir. 1990) (reh'g denied);  Lovelace v. Long John Silver's Inc., 841 S.W.2d 682, 684 (Mo. App. 1992);   Woods v. Helmi, 758 S.W.2d 219, 223 (Tenn. App. 1988).  
³⁹  Note that these jurisdictions often codify this view within their states' defamation statutes.  
⁴⁰  See, e.g., Simpson v. Mars, Inc. 113 Nev. 188, 190, 929 P.2d 966, 967 (Nev. 1997)(discussed infra).  
⁴¹  In these jurisdictions, courts analyze the impact of the intracorporate nature of the disputed remark as creating a potential privilege defense, discussed infra, rather than raising an issue concerning publication.  
⁴²  97 Nev. 24, 623 P.2d 970 (Nev. 1981).  
⁴³  12 113 Nev. at 191, 929 P.2d at 968.  See   Lyons v. Nat'l Car Rental Systems Inc. of Del., 30 F.3d 240, 244, 9 IER Cases (BNA) 1302, 1305 (1st Cir. 1994) (Massachusetts law);  Petsch-Schnid v. Boston Edison Co., 914 F.Supp. 697, 705 (D. Mass. 1996);  Howcroft v. Mtn States Tel. & Tel. Co.,  712 F.Supp. 1514, 1522-1523 (D. Utah 1989);  Stewart v. Pantry, Inc., 715 F.Supp. 1361, 1367 (W.D. Ky. 1988);  Brantley v. Zantop Int'l Airlines, Inc., 617 F.Supp. 1032, 1034 (D.Mich. 1985);   Elbeshbeshy v. Franklin Institute, 618 F.Supp. 170, 171 (D.C. Pa. 1985);  Simpson v. Mars, Inc., 113 Nev. 188, 190, 929 P.2d 966, 967 (Nev. 1997); Wallulis v. Dymowski, 323 Or. 337, 347, 918 P.2d 755, 759, 11 IER Cases (BNA) 1512, 1516-1517 (Ore. 1996);  Smith v. Shoreline Care Ltd., 1996 WL 365015 * 9 1996 Conn. Super. LEXIS 1343, (Conn. Sup. Ct. 1996);   Staples v. Bangor Hydro-Electric Co., 629 A.2d 601, 603 (Me. Sup. Jud. Ct. 1993);   Bals v. Verduzco, 600 N.E.2d 1353, 1356, 7 IER Cases (BNA) 1473, 1474 (Ind. 1992);  D.C. v. Thompson, 570 A.2d 277, 291-292 (D.C. App.), reh'g granted, 580 A.2d 144 (D.C. App. 1990), cert. denied, 502 U.S. 942 (1991);   Frankson v. Design Space Int'l., 394 N.W.2d 140, 143-144 (Minn. 1986);   Luttrell v. United Tel. System Inc., 9 Kans.App.2d 620, 621, 683 P.2d 1292, 1293 (Kans. Ct. App. 1984), aff'd, 695 P.2d 1279 (Kans. 1985);   Southern Bell Tel. &  Tel. Co. v. Barnes, 443 So.2d 1085, 1086 (Fla. App. 1984);  Kelly v. General Tel. Co., 136 Cal. App. 3d 278, 285, 186 Cal. Rptr. 184, 186 (Cal. App. 1982);  Welch v. Chicago Tribune Co., 34 Ill. App. 3d 1046, 1052, 340 N.E.2d 539, 544 (1975).  
⁴⁴  629 A.2d at 604.  
⁴⁵  See, Restatement (Second) of Torts §577(1) (1977) (stating that "publication of defamatory matter is its communication intentionally or by a negligent act to one other than the person defamed").  
⁴⁶  See, e.g., Carson v. Southern Ry., 494 F. Supp. 1104, 1113-14 (D.S.C. 1979) (citing authority supporting general rule against self-publication).  
⁴⁷  Lewis v. The Equitable Life Assurance Society, 389 N.W.2d 876, 888, 62 A.L.R.4th 581, 1 BNA IER CAS 1269 (Minn. 1986).  
⁴⁸  Siegel, Self-Publication: Defamation Within The Employment Context, 26 St. Mary's L. J. 1, 4 (1994).  
⁴⁹  Carey v. Mt Desert Island Hospital, 910 F. Supp. 7 (D. Maine 1995).  
⁵⁰  Gore v. Health Tex, Inc., 567 So. 2d 1307, 1308 (Ala. 1990) (without discussion, Court indicates it is "not prepared" to adopt the principal in Alabama).  
⁵¹  Layne v. Builders Plumbing Supply Co., 569 N.E.2d 1104, 1110-11 (Ill. App. Ct. 1991) (refusing to accept self-publication as sufficient basis for defamation cause of action).  
⁵²  Sarratore v. Longview Van Corp., 666 F. Supp. 1257, 1264 (N.D. Ind. 1987) (refusing to create self-defamation cause of action because Indiana case law lacked "judicial landmarks" that clearly point to recognition).  
⁵³  De Leon v. Saint Joseph Hosp., Inc., 871 F.2d 1229, 1237 (4th Cir. 1989) (opines that Maryland does not recognize self-defamation actions).  
⁵⁴  Tischman v. ITT/Sheraton Corp., 882 F. Supp. 1358 (S.D.N.Y. 1995); Wieder v. Chemical Bank, 202 A.D.2d 168, 608 N.Y.S.2d 195, 196 (1st Dep't 1994); but c.f., Elmore v. Shell Oil Co., 733 F. Supp. 544 (E.D.N.Y. 1988)(adopting the principle).  
⁵⁵  Starr v. Pearle Vision, 54 F.3d 1548 (10th Cir 1995) (Court declined to assume that Oklahoma would recognize such a cause of action).  
⁵⁶  Walker v. INS America, 1994 U.S. Dist. LEXIS 18620, (E.D.Pa. 1994); Yetter v. Ward Trucking Corp., 401 Pa. Super. 467, 585 A.2d 1022, 1024 (Pa. Super. 1990)(based on preexisting Pennsylvania law that there is an absolute privilege for an employer to publish defamatory matter in job references under many circumstances).  
⁵⁷  Carson v. Southern Ry., 494 F. Supp. 1104, 1113-14 (D.S.C. 1979) (noting apparent rejection of self-defamation cause of action by South Carolina Supreme Court).  
⁵⁸  Atkins v. Industrial Telecommunications Ass'n, Inc.,  660 A.2d 885 (D.C. App. 1995) (holding that Virginia law would not permit defamation action under a theory of compelled self-publication).  
⁵⁹  Lunz v. Neuman, 48 Wash. 2d 26, 290 P.2d 697 (Wash. 1955).  
⁶⁰  See, Lloyd v In Home Health, Inc., 523 N.W.2d 2 (Minn. App. 1994) where the Court dismissed a compelled self publication claim because the employer had complied with the statute.  
⁶¹  Siegel, Self-Publication: Defamation Within The Employment Context, 26 St. Mary's L. J. 1, 4 (1994).  
⁶²  Ashway v. Ferrellgas Inc., 59 FEP Cases 375, 378 (D. Az. 1989) (dicta that a discharged employee's "foreseeable compelled self-publications" can constitute sufficient publication to give rise to employment defamation claims).  
⁶³  Coatney v Enterprise Rent-A-Car Co., 897 F. Supp. 1205 (D. Ark. 1995)(denied motion to dismiss complaint based on self publication without discussion).  
⁶⁴  Lewis, McKinney v. County of Santa Clara, 110 Cal. App. 3d 787, 796, 168 Cal. Rptr. 89, 93-94 (Cal App. 1980) (when "the originator of the defamatory statement has reason to believe that the person defamed will be under a strong compulsion to disclose the contents of the defamatory statement to a third person," the originator is responsible for that publication).  
⁶⁵  Churchey v. Adolph Coors Co., 759 P.2d 1336 (Colo. 1988) (adopts rule that "when the originator of the defamatory statement has reason to believe that the person defamed will be under a strong compulsion to disclose the contents of the defamatory statement to a third person, the originator is responsible for that publication.").  
⁶⁶  Colonial Stores, Inc. v. Barrett, 73 Ga. App. 839, 38 S.E.2d 306, 307-08 (Ga. App. 1946) (self publication exception applies when defendant knew plaintiff would be required by regulation to disclose statement to prospective employers).  
⁶⁷  Belcher v. Little, 315 N.W.2d 734 (Iowa 1982)(adopted principle and remanded for jury determination); Thompto v Coborn's Inc., 871 F. Supp. 1097 (N. D. Iowa 1994) (recognizes principle but dismissed case based on qualified privilege).  
⁶⁸  Polson v. Davis, 635 F. Supp. 1130 (D. Kans. 1986) (stating that defamed person who chooses honesty rather than deceit should be commended and should not be denied recovery as result of choice), aff'd. 895 F.2d 705 (10th Cir. 1990).  
⁶⁹  Carey v. Mt. Desert Island Hosp., 910 F. Supp. 7 (D. Me. 1995) ("This Court concludes, based on Maine's position of negligent publication, coupled with the authority of the Restatement, that the Maine Supreme Judicial Court would recognize defamation under the compelled self-publication theory.").  
⁷⁰  Grist v. Upjohn Co., 16 Mich. App. 452, 168 N.W.2d 389, 405-06  (Mich. App. 1969) (publication may occur when originator of statement "intends or has reason to suppose that in the ordinary course of events the matter will come to the knowledge of some third person").  
⁷¹  Lewis v. Equitable Life Assurance Society, 389 N.W. 2d 876, 888 (Minn. 1986) ("we hold that in an action for defamation, the publication requirement may be satisfied where the plaintiff was compelled to publish a defamatory statement to a third person if it was foreseeable to the defendant that the plaintiff would be so compelled."); Pfluger v. Southview Chevrolet Co., 967 F.2d 1218, 1220 (8th Cir 1992).  
⁷²  Herberholt v. dePaul Community Health Ctr., 625 S.W.2d 617 (Mo. 1981) and Neighbors v. Kirksville College of Osteopathic Medicine, 694 S.W. 2nd 822, 824-25 (Mo. App. 1985) (self-publication adopted on the basis that the defendant knew or could have foreseen that the plaintiff was likely to repeat the defamatory statement).  
⁷³  Bretz v. Mayer, 1 Ohio Misc. 59, 67, 203 N.E.2d 665, 671 (Ohio Comm. Pleas 1963) ("patently inevitable" that plaintiff would reveal communication).  
⁷⁴  First State Bank v. Ake, 606 S.W.2d 696 (Tex. Civ. App. 1980); Chasewood Construction Co. v. Rico, 696 S.W.2d 439 (Tex. Civ. App. 1985); First State Bank of Corpus Christi v. Ake, 606 S.W.2d 696, 701 (Tex. Civ.App.); Purcell v. Seguin State Bank and Trust Co., 999 F.2d 950, 959 (5th Cir. 1993). However, one circuit court in Texas refused to adopt the principal.  Doe v. SmithKline Beecham Corp., 855 S.W.2d 248, 259 (Tex. Civ. App. 1993), aff'd. on other grounds, 903 S.W.2d 347 (Tex. 1995).  
⁷⁵  Raymond v International Business Machines Corp. 954 F. Supp. 744, 755 (D.Vt. 1997) ("publication may be established if the defendant knows that of necessity the plaintiff must disclose the statement.").  
⁷⁶  Rumpel v Bank of Buffalo, 166 Wis. 2d 1052, 481 N.W.2d 708 (App. 1992)(Court assumed without deciding that is such a principle and then dismissed on conditional privilege grounds).  
⁷⁷  See e.g., Neighbors v. Kirksville College of Osteopathic Medicine, 694 S.W.2d 822, 824-25 (Mo.Ct.App. 1985).  
⁷⁸  Churchey v. Adolph Coors Co., 759 P.2d 1336 (Colo. 1988).  
⁷⁹  See, Colonial Stores, Inc. v. Barrett, 38 S.E.2d 306, 308 (Ga. Ct. App. 1946) (imposing liability on employer because of his knowledge that letter of availability would be presented to third persons); Grist v. Upjohn Co., 168 N.W.2d 389, 406 (Mich. Ct. App. 1969) (stating that self-publication could support defamation claim when originator had reason to suppose third party would become privy to information).  
⁸⁰  Restatement of Torts (Second) § 578.  
⁸¹  See, also, Prosser and Keaton on Torts, §113 (5th Ed. 1984).  
⁸²  Duffy v Leading Edge, 44 F.3d 308 (5th Cir. 1995) (applying Texas law: assumed was cause of action for self publication but found insufficient evidence of malice needed to overcome qualified privilege); Carey v. Mt. Desert Island, 1996 U.S. Dist. LEXIS 12397 (D. Me. 1996) (after ruling, a year earlier, that there is such a cause of action in Maine, 910 F. Supp. 7,  District Court dismisses claim for lack of evidence of malice).  
⁸³  In Downs v. Waremart, Inc., 324 Ore. 307, 926 P.2d 314 (1996), the Oregon Court dismissed a complaint because it failed to allege that the reasons for termination were communicated to anyone by the plaintiff.  See also, Wallulis v. Dymowski, 323 Ore. 337, 343, 918 P.2d 755 (1996) ("if a person makes a defamatory statement about another person, but that statement is not conveyed to a third party, no publication has occurred.") and, see, Davis v. Consolidated Freightways, 29 Cal. App. 4th 354, 34 Cal. Rptr. 2d 438 (1994) (dismissed case for lack of proof that reason for firing was conveyed to anyone).  
⁸⁴  Accubanc Mortgage Corporation, 938 S.W.2d 135 (Tex. Civ. App. 1996)  (Relying on the Restatement, the Court adopted this view: "Self-publication does occur, however, (1) if the defamed person's communication of the defamatory statements to the third person was made without an awareness of their defamatory nature, and (2) if the circumstances indicated that communication to a third party was likely." The Court then dismissed because the plaintiff was aware that the statement he made to a prospective employer was defamatory).  
⁸⁵  See, e.g., McKinney v. County of Santa Clara, 110 Cal. App. 3d 787, 796, 168 Cal. Rptr. 89, 93-94 (1980) (employee must demonstrate a "strong compulsion" to disclose the contents of the defamatory statement to a third person).  
⁸⁶  See, Lewis v. Equitable Life Assurance Society, 389 N.W.2d 876 (Minn. 1986), affirming a verdict for the plaintiff in an unspecified amount arising out of a compelled self publication.  
⁸⁷  Restatement (Second) of Torts § 583 (1977).  
⁸⁸  Restatement (Second) of Torts § 583, illustration to comment d (1977).  
⁸⁹  Restatement (Second) of Torts § 584 (1977).  
⁹⁰  Restatement (Second) of Torts § 583 comment d (1977).  
⁹¹  See, Hill v. Cray Research, Inc., 864 F.Supp. 1070, 1076 (D.N.M. 1991).  
⁹²  Hill v. Cray Research, Inc., supra, 864 F.Supp. at 1076.  
⁹³  Yeitrakis v. Shering-Plough Corp., 804 F.Supp. 238, 250 (D.N.M. 1992), aff'd, 51 F.3d 287 (10th Cir. 1995).  See also Turner v. Gateway Transp. Co., Inc., 569 S.W.2d 358 (Mo.Ct.App. 1978) (consent implied from voluntary membership in union); Kraft v. William Alanson White Psychiatric Fdn., 498 A.2d 1145 (D.C. 1985) (consent implied from voluntary membership in education institution).  
⁹⁴  Royer v. Steinberg, 90 Cal.App.3d 490, 498, 153 Cal.Rptr. 499 (1979).  
⁹⁵  Id.  
⁹⁶  Litman v. Massachusetts Mut. Life Ins. Co., 739 F.2d 1549, 1555 (11th Cir. 1984).  
⁹⁷  Id. at 1555-56.  
⁹⁸  Costa v. Smith, 601 P.2d 661 (Colo.Ct.App. 1979).  
⁹⁹  Id.  
¹⁰⁰Hughley v. McDermott, 530 A.2d 13, 18-19 (Md.Ct.Spec.App. 1989).  
¹⁰¹Id.  
¹⁰²For narrative ease, this paper will use "she" or "her" when referring to the alleged victim of sexual harassment and "he" or "him" when referring to the perpetrator.  As a practical matter, most victims of sexual harassment are women and most of the perpetrators are men, but the gender of the accused and the accuser can and does vary.  
¹⁰³42 U.S.C. § 2000e et seq.; 29 C.F.R. § 1604.11(e)(EEOC Reg.).  
¹⁰⁴See, e.g., Garziano v. E.I. Du Pont De Nemours & Co., 818 F.2d 380, 384 (5th Cir. 1987) (former employee alleged he was defamed when employer posted company-wide bulletin describing, in general terms, a victim's complaint of sexual harassment); Scherer v. Rockwell Int'l Corp., 766 F.Supp. 593 (N.D.Ill. 1991) modified, 1991 U.S. Dist. LEXIS 6689 (N.D.Ill. 1991) and aff'd, adopted, in part, 975 F.2d 356 (former employee alleged company circulated accounts of his discharge due to allegations of sexual harassment); Bell v. Evening Post Publishing Co., 318 S.C. 558, 459 S.E.2d 315 (S.C. Ct. App. 1995) (former employee alleged he was defamed by his supervisors during sexual harassment investigation); Tischmann v. ITT/Sheraton Corp., 882 F.Supp 1358 (S.D.N.Y. 1995) (former employee alleged he was defamed after disclosure to other employees that he had committed sexual harassment).  
¹⁰⁵If the accuser uses her employer's internal grievance procedures to accuse a co-worker of sexual harassment, she could be subject to a defamation claim if the charges are false.  See, e.g., Clowers v. Willis, No. 92-CV-1107 (E.D.Tex. 1993) (federal jury awarded $3 million to Houston law enforcement officer who sued for defamation alleging that he was falsely accused of sexual harassment by a female subordinate);  Lawson v. Boeing Co., 58 Wash.App. 261, 792 P.2d 545 (1990), review denied, 116 Wash.2d 1021 (1991) (plaintiff asserted defamation claims against Boeing, employees who accused him of harassment and employees who investigated the complaints).  If, on the other hand, the accuser skips her employer's grievance procedure and goes directly to the EEOC with her complaint, she is guaranteed absolute immunity from defamation liability.  See, e.g., Panos v. Homako Hosp., 140 Ariz. 335, 681 P.2d 918 (Ct. App. 1984).  Absolute immunity is also guaranteed for statements made to state administrative agencies.  See, e.g., Gantt v. Sentry Ins. Co., 1 Cal.4th 1083 (1992).  
¹⁰⁶See, e.g., Halsell v. Kimberly-Clark Corp., 683 F.2d 285 (8th Cir. 1982) (applying Wisconsin law), cert. denied, 459 U.S. 1205 (1983); ITT Rayonier, Inc. v. McLaney, 420 S.E.2d 610 (Ga. Ct. App. 1992), cert. denied, 1992 Ga. Lexis 756 (Ga. Sept. 11, 1992); Hellesen v. Knaus Truck Lines, Inc., 370 S.W.2d 341 (Mo. 1963).  
¹⁰⁷See, e.g., Garziano, 818 F.2d at 387-88 (company-wide bulletin describing incidents of sexual harassment carries qualified privilege because, among other reasons, employer had a "common interest" in communicating sexual harassment policy to its employees); Vackar v. Package Mach. Co., 841 F.Supp. 310 (N.D. Cal. 1993) (qualified privilege protects repetition to plaintiff's employer of hearsay reports of sexual harassment by customer that employed alleged victims); Lambert v. Morehouse, 68 Wash.App. 500, 61 FEP Cases (BNA) 50 (Wash. 1993), review denied, 121 Wash.2d 1022 (1993)(complaints of sexual harassment made in context of workplace investigations conditionally privileged); Hines v. Arkansas La. Gas Co., 613 So.2d 646 (La. Ct. App. 1993) (employer's defamatory statements during sexual harassment investigation fell under qualified privilege), cert. denied, 617 So.2d 932 (La. 1993).  
¹⁰⁸The qualified privilege is an affirmative defense that must be pled and proved by the defendant.  Whether there is a qualified privilege is a question of law for the court.  Columbia First Bank v. Ferguson, 665 A.2d 650, 655 (1995).  
¹⁰⁹Taggart v. Drake University, 549 N.W.2d 796, 803, 1996 Iowa Sup. LEXIS 308 (1996).  
¹¹⁰See, e.g., Garziano, 818 F.2d at 388.  
¹¹¹General Motors Corp. v. Piskor, 277 Md.165, 352 A.2d 810 (1975), appeal after remand, 381 A.2d 16 (1977).  
¹¹²Jones v. Britt Airways, Inc., 622 F.Supp. 389, 392 (N.D. Ill. 1985); See, e.g., Prysak v. R.L. Polk Co., 483 N.W.2d 629, 636 (Mich. Ct. App. 1992); Lawson v. Boeing Co., 58 Wash. App. 261, 267, 792 P.2d 545 (1990), review denied, 116 Wash.2d 1021 (1991).  
¹¹³Hanley v. Riverside Methodist Hosp., 78 Ohio App.3d 73, 603 N.E.2d 1126 (Ct. App. 1991).  
¹¹⁴See, Lawson, 58 Wash. App. at 267-68.  
¹¹⁵Babb v. Minder, 806 F.2d 749, 756 (7th Cir. 1986).  
¹¹⁶See, Alioto v. Cowles Communications, 430 F.Supp. 1363, aff'd, 623 F.2d 616 (9th Cir. 1980), cert. denied, 449 U.S. 1102 (1981) (N.D. Cal. 1977) (actual malice proved by relying on a known "liar").  
¹¹⁷Dombey v. Phoenix Newspapers, Inc., 150 Ariz. 476, 724 P.2d 562 (1986)  
¹¹⁸Purgess v. Sharrock, 33 F.3d 134, 136 (2d Cir. 1994).  
¹¹⁹Jones v. Central Peninsula General Hosp., 779 P.2d 783, 790 (Alaska 1989); Olsson v. Indiana Univ. Bd. of Trustees, 571 N.E.2d 585, 588 (Ind. Ct. App. 1991) transfer denied, (Dec. 20, 1991).  
¹²⁰Restatement (Second) of Torts, Section 604, Comment B (1977).  
¹²¹512 N.W.2d 777, 785 (Iowa 1994).  
¹²²See, e.g., Bradley v. Hubbard Broadcasting, Inc., 471 N.W.2d 670 (Minn.App. 1991) (judgment for employee upheld where supervisor had caused allegation of gross misconduct to circulate as office gossip without investigating).  
¹²³277 Md.165, 352 A.2d 810 (1975), appeal after remand, 381 A.2d 16 (1977).  
¹²⁴Id.  
¹²⁵F