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The National Law Journal and the ABA Journal report on a story out of Boston of how a former big law associate, already suing the firm for racial discrimination and retaliation, was allowed to add on charges of defamation and invasion of privacy. The additional charges stem from the alleged disclosure of an EEOC final determination letter to a law blog, Above The Law. The letter contained damaging information about the ex-employee, which the ex-employee claims was supposed to have remained private.
There were two troubling employment practices aspects to the story: first, the possibility that someone at the firm could be responsible for disclosing the EEOC letter and second, a statement made by a firm spokesperson to Above The Law. Those types of actions lend themselves to potential new, costly, and unnecessary legal claims. While there may be defenses to the new claims, I would rather direct the discussion to business practices that limit such claims in the first place.
Defamation & Invasion of Privacy For Distributing The EEOC Letter
It?s unclear how Above The Law received a copy of the EEOC letter. The ex-employee claims that the agency is not supposed to make such materials available to the public until there is a legal proceeding, which did not happen until over two months after the blog?s publication. Therefore, he alleges that the firm must have disclosed the letter, because he certainly did not.
If a Wisconsin employer released a similar letter outside the organization, the disclosure would have the potential for a defamation and invasion of privacy claim. In Zinda v. Louisiana Pacific Corp., decided by the Wisconsin Supreme Court, an employee was terminated because the company claimed he had falsified his employment application. In a newsletter, the company informed other employees of the termination and the reason. The newsletter did not stay just inside the company and two of Zinda?s acquaintances read it. Consequently, Zinda felt embarrassed and humiliated and he filed additional complaints for defamation and invasion of privacy.
The case was a lengthy litigation for the company. A jury awarded Zinda $50,000 in compensatory damages and $50,000 in punitive damages. The employer then appealed, claiming the damages were excessive and that a conditional privilege existed that allowed the publication. The Court of Appeals upheld the defamation and invasion of privacy claims, but directed a new trial on the amount of damages. Both parties then appealed to the Wisconsin Supreme Court, which said that while there is a conditional privilege for communicating personnel matters within a company, that privilege can be lost if abused. Further, it is up to a jury to decide whether the privilege has been abused.
In hindsight, were two jury trials, $100,000 in potential liability, two appeals, and the associated litigation costs worth it to identify Zinda as an employee who had been terminated for falsifying an employment application? Wouldn?t the? better business decision have been for the company to not say anything? If it was important to communicate to other employees that honesty was expected and termination was a very real possibility, could the company not have done so without identifying and embarrassing the individual?
Circling back to the current case and the EEOC letter, again, we will have to wait and see how the EEOC letter was obtained by Above the Law. If the blog obtained the letter from someone outside the law firm, then the firm did not invite further litigation. But if an insider released the letter, then the firm did invite further litigation and the costs and publicity that go with it.
Unnecessary Statements
The other troubling aspect of the Above The Law story is the following statement made by a spokesperson at the firm:
?After an 18-month investigation, the EEOC determined that [we] denied partnership to [the ex-employee] because of work that was well below our partnership standards, his fractured relationships with colleagues and allegations of inappropriate behavior with subordinates. In short, he did not perform to the high standards of quality and judgment expected of partners at our firm, and as a result we terminated his employment.? (Emphasis added).
I understand that the firm probably felt the need to defend itself and provide its perspective. But the response could have been limited to, ?as you can see, the EEOC determined that we did nothing wrong. We look forward to moving past this issue.?? That would have been a simple response, one that communicated the key facts and agency determination that the firm did nothing wrong, without giving the ex-employee a reason to feel insulted or further humiliated. Instead, the spokesperson?s comments serve as a permanent negative reference against the ex-employee and could result in questions into allegations that were never proven or not generally known. Such damaging consequences are key ingredients for inviting a litigious response in the form of defamation or invasion of privacy.
Keep It Simple
When discussing an ex-employee ? whether speaking to the media, company employees, or to future employers ? keep the conversation as simple as possible. A former employee who feels publicly humiliated or embarrassed will look for litigation as a means to strike back or to recover damages. Rather than invite unneeded litigation, keep the following points in mind:
1.? If the person?s identity or wrongful actions are not known, do not be eager to publicize them.
2. If the person?s identity is known, just acknowledge that the person was terminated without discussing the details or reasons for the termination.
3.? Be aware that comments to the media or a blog will be public and may haunt the person?s job search or career for a long time.
4.? Avoid comments that will put the person in the awkward position of defending unproven allegations of inappropriate or illegal behavior.
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Source: http://mahalawgroup.com/inviting-more-lawsuits/
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