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Employers in Massachusetts closely watched a recent case to see if the state’s high court would recognize the tort of compelled self-defamation, in which a discharged employee sought recovery for feeling compelled to repeat to prospective employers his former employer’s reasons for discharging him. The Supreme Judicial Court has declined to recognize this tort. If it had been adopted, the tort would have had the potential to erode an employer’s right to fire an at-will employee and affect communication between employers and employees. 

Roy Albert White, an at-will employee of Blue Cross, claimed he was fired because a client hospital told Blue Cross that White had divulged the details of a confidential financial settlement between the hospital and Blue Cross. White claimed that Blue Cross’s statement explaining his termination was false and defamatory, and that he had been compelled to repeat the reason for his discharge to potential employers. White sued Blue Cross on the theory of compelled selfdefamation. The trial court dismissed the claim on the ground that Massachusetts does not recognize the claim, and White appealed. While the case was still pending in the intermediate appellate court, the Supreme Judicial Court took the case for direct appellate review on its own initiative. The Court has heard oral argument, and the case is under advisement. 

White argued that the Court should recognize the tort in order to provide a remedy to an employee who has been discharged for false and defamatory reasons and who is unable to secure a new job because he is compelled to repeat these reasons to prospective employers. White contended that it is foreseeable, if not inevitable, that a prospective employer will ask a candidate why his former employer discharged him. Lying, White argued, is not an option that the law should recognize. White asserted that he seeks only to expand the “publication” element of defamation. This element traditionally requires the plaintiff to prove that the defendant repeated a defamatory statement to a third party. White argued that publication should also include statements by the plaintiff himself when the plaintiff is compelled to repeat the false and defamatory reasons for his discharge to prospective employers. The employee would still have the burden, White argued, of showing in each case that he was actually compelled to make the statement, and that such compelled disclosure was foreseeable. As with any other defamation claim, the employer would remain protected by the conditional privilege to make good-faith disclosures of information necessary to its business, even if such information later proves to be false. And, as with any other defamation claim, the employee would have the burden of showing that the employer has lost this privilege by publishing the reason for his discharge with knowledge of its falsity, or with reckless disregard for the truth. 

Blue Cross argued that compelled self-defamation ignores the publication element of traditional defamation and is a questionable and much-criticized doctrine recognized in only a minority of jurisdictions. Expanding defamation law this way would expose an employer to potential liability merely for communicating to an at-will employee the reasons for discharging him. This tort could chill open communication in the workplace. An employee who might improve substandard job performance through the employer’s constructive criticism may now lose this opportunity, and her job, because the employer would be wary of making any negative statements to the employee. An employee falsely accused of misconduct could be needlessly terminated because, never confronted with the reason for the discharge, he had no chance to rebut the false accusation. The tort could foster an unhealthy “culture of silence” in the workplace.

Blue Cross also contended that the tort might encourage former employees to repeat defamatory statements gratuitously to prospective employers, when the employees could have otherwise avoided such statements or explained to prospective employers the true circumstances of their discharge. A former employee could state a new claim for self-defamation each time that she applied for a job and stated the former employer’s reason for her termination.

Blue Cross also argued that the tort has a potentially broad reach, because it cannot be restricted to employment. Courts from other jurisdictions have recognized compelled self-defamation in other contexts, such as a physician’s report to his insurance company about lost hospital privileges, a minister’s repeating comments to his parishioners, a minor showing a letter to unspecified others, and a loan applicant’s comments to a bank when seeking a loan. In short, recognizing the tort could expose individuals in many other contexts to liability simply for exercising their discretionary functions.

New England Legal Foundation filed an amicus brief in support of Blue Cross. NELF argued that self-defamation is a thinly disguised claim of wrongful discharge and an evasion of the employment at-will relationship. By removing the publication element from the employer and placing it in the hands of the employee, the tort allows the employee to subject the employer’s decision to a “just cause” standard of review. To defend against a claim of self-defamation, an employer would need to establish the traditional defamation defenses that its reasons for discharge were true, or at least that it did not act with recklessness to the truth. By contrast, an employer can discharge an at-will employee for any reason or for no reason at all. Thus, creating the tort would have increased the duties of an employer before discharging an at-will employee beyond those duties required under established law.

NELF also argued that White has a remedy under existing law, so that there is no need to expand defamation law to create a remedy for his alleged circumstances. He could have sued the client hospital for defamation or for tortious interference with contractual or advantageous business relationships. 

Finally, NELF argued that Massachusetts has traditionally deferred to an employer’s business judgment and is loath to interfere with the at-will relationship. Recognizing the tort, however, would involve courts in scrutinizing and second-guessing employers’ business decisions to discharge at-will employees.

After the parties in this case submitted their briefs, the Connecticut Supreme Court issued a decision rejecting the tort of compelled self-defamation. Courts applying the law of at least 14 other states and Puerto Rico have also rejected the tort. Additionally, the legislatures of Colorado and Minnesota have expressly overruled decisions of their respective state supreme courts recognizing the tort. Courts applying the law of approximately 12 states have recognized the doctrine. Lower courts in two other states, New York and Texas, are split on the issue.

In June of 2004, the Supreme Judicial Court ruled in Blue Cross’ favor. The court agreed with NELF’s position and declined to recognize the doctrine of compelled self-defamation. The Court explained that “White could have demanded an employment contract with Blue Cross, but did not do so. The law should not permit him to secure indirectly what he failed to negotiate directly.” The Court also observed that recognizing the doctrine of self-publication would contravene an employer’s established privilege to disclose information about a former employee to prospective employers. Finally, the Court noted that if a discharged employee is free to file suit whenever he discloses information to prospective employers concerning his discharge, “the statute of limitations become[s] meaningless” and “the discharged employee may publish and republish the alleged defamatory statement for the remainder of his professional life.”

 

*The author, Ben Robbins, is Staff Attorney at the New England Legal Foundation, a not-for-profit law firm advocating the interests of the business community.

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