Hunton Employment & Labor Perspectives

In the wake of the #MeToo movement, many state legislatures have begun to take action to provide greater protections for victims of sexual harassment and make it easier for them to make complaints in the workplace.  For example, in California, AB 2770 amends Civil Code Section 47 to protect alleged victims of sexual harassment by a co-worker in making complaints to the employer without the fear of being found liable for defaming the alleged harasser.  It similarly protects employers when making statements to interested parties (such as the Department of Fair Employment and Housing and/or Equal Employment Opportunity Commission) concerning the complaints of sexual harassment.  In both instances, however, the statements and/or complaints are only protected from liability for defamation if they are made without malice and based upon credible evidence.

Under existing law, current or former employers are protected from liability for defamation when making any statement concerning the job performance or qualifications of a person who has applied for employment elsewhere, at the request of a prospective employer or the applicant, as long as those statements are made without malice and based upon credible evidence.  Existing law also allows a current or former employer to answer whether or not it would rehire the applicant without the risk of being held liable for defamation of the applicant.

The amendment, which goes into effect January 1, 2019, goes further to protect a former or current employer from liability for defamation when answering an inquiry from a prospective employer as to whether or not the employer would rehire the applicant, and allows the employer to state whether the decision is based upon the current or former employer’s determination that the applicant engaged in sexual harassment.

The idea behind AB 2770 is that it might encourage more victims of sexual harassment to speak out.  Additionally, because employers are legally required to investigate claims of sexual harassment but also risk being sued by the alleged harasser when fulfilling their legal obligation, the new bill provides employers with the solace that they can investigate claims of sexual harassment, participate in investigations by administrative bodies, and notify prospective employers about a sexual harasser without the fear of liability for defamation.

If you are a prospective employer conducting a reference check, in order to avoid hiring an applicant who has been found to have engaged in sexual harassment  and protect your employees – and avoid facing a potential negligent hiring claim – you should consider asking whether the former or current employer would rehire the applicant and whether a decision not to rehire is based on the determination that the applicant engaged in sexual harassment.  However, if you are a current or former employer being asked this question or conducting or taking part in an investigation, take heed, the new law is not clear as to how much detail can be provided about the alleged harassment.  As always, consult counsel if you have any questions regarding the new law.