Can I Be Sued For Slander For Reporting Sexual Harassment?

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An AOL Jobs reader asks:

I recently filed a report with the Texas Workforce Commission stating that my former employer sexually harassed me. The office had fewer than 15 employees, so I couldn't report the claim through EEOC. I just received a letter in the mail from my former employer that says he intends to sue me for falsely claiming sexual harassment and reputation damage. Can he actually do that? Where are my rights?

So your sexual harasser says you've defamed him or her by reporting the sexual harassment? Sounds pretty outrageous, but that's exactly what happened when a former Yahoo engineer recently sued an executive for sexual harassment. The executive countersued for defamation, saying her reputation was damaged. A California lawyer won a $1.55 million judgment in his counterclaim against a former paralegal who sued for sexual harassment but also told coworkers he was a sexual predator.

So, what are your rights? Well, I'd first look at the Texas statutes, which say this about the Texas Workforce Commission:

Sec. 301.074. DEFAMATION. An oral or written statement made to the commission or to an employee of the commission in connection with the discharge of the commission's or the employee's duties under Subtitle A may not be the basis for an action for defamation of character.

It looks pretty clear that in this particular situation, you may be legally protected. I'd still suggest talking to an employment lawyer in your state about this issue.

In general, whether you can be sued for defamation based on an allegation of sexual harassment will depend on what you said and who you said it to. Here's what you need to know about when you can be sued for complaining about sexual harassment:
  • Absolute privilege: Statements made in court proceedings and some administrative or quasi-judicial proceedings are almost never something you can sue over. These statements are considered "absolutely privileged" because the courts want to make sure people can testify without being worried about a suit if someone doesn't like what they say.
  • Qualified privilege: If you report sexual harassment to someone who is supposed to deal with sexual harassment complaints, such as your HR department or an outside agency that handles discrimination, even if it isn't subject to an absolute privilege, you may have a qualified privilege. If you only told those who had a need to know about the issue, then you are probably still protected.
  • Publication: Defamation claims require "publication." This doesn't mean you have to put it in the newspaper or a book. It means you have to tell someone other than the person you're accusing and yourself. In some states, that means telling people in the same company about sexual harassment in the company may never be defamation because the corporation is a single legal entity (you may have heard that corporations are legally considered to be people, and this is one of those situations). Telling co-workers may or may not cross the line legally in your state.
  • Exceeding privilege: If you file a lawsuit, what you say in the suit is privileged. If, however, you go on TV and talk about the allegations, you don't have a privilege for the statements you make on TV. If you tell HR, but then also tell company customers, you're also not protected. Be careful who you tell.
  • Truth is a defense: If you are sued for defamation, truth is always a defense. If you can prove that what you said was truthful, then you'll win (possibly after a long, nasty, expensive suit).
Sometimes, those accused of sexual harassment strike back with a lawsuit for damaging their reputation. In the case of a false accusation, the accused harasser may have the right to sue for defamation and recover damages to their reputation. If, however, you are telling the truth, I'd just say be careful who you tell and try to report it in ways where you're legally protected from a suit. If they threaten you, talk to a lawyer. Don't let the harasser bully you out of telling the truth and reporting them.

If you need legal advice, it's best to talk to an employment lawyer in your state, but if you have general legal issues you want me to discuss publicly here, whether about discrimination, working conditions, employment contracts, medical leave, or other employment law issues, you can ask me at AOL Jobs.

Please note: Anything you write to me may be featured in one of my columns. I won't be able to respond individually to questions.
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