Defamation refers to uttering an untruthful statement about someone. “Libel” refers to written defamation. “Slander” refers to oral defamation. In the employment context, defamation has an extra hurdle. In Texas, to constitute defamation at work, the defamation must be made in the course and scope of employment. That is, the defamatory statement must be related to the speaker’s job. So long as the speaker makes the statement to persons with a duty or need to know, then the speaker will be protected by a qualified privilege. To qualify as workplace related defamation, the statement must be made as part of one’s job. If the statement is part of someone’s job, then it will be protected by a “qualified privilege.”

For example, if a manager makes a statement to someone in Human Resources about an employee, even if that statement is not truthful, then the qualified privilege would probably apply. The manager’s statement would be protected by this qualified privilege. If the manager makes a statement to a potential employer, then again that statement will be deemed to have been made in the course and scope of employment. So, the manager’s statement will be protected by the qualified privilege.

An employee can overcome the qualified privilege only be showing that the speaker acted with actual malice. Showing malice is a high burden. Malice refers to a person knowingly and deliberately causing harm. Malice is more than a mistake or a misunderstanding. To show malice, an employee would have to show the speaker knew or should have known the statement was not true and that the speaker sought to cause harm of some sort. Many employees have come to me seeking redress for defamation. Rarely have I seen sufficient evidence to make a case of malice.  It is quite difficult to get inside a person’s head and show what the manager was thinking. That sort of evidence is rare.

For example, an employer fires a person for alleged stealing. The employee did not steal.  But, how do we show malice? That is, how do we show the employer knew or should have known the theft allegations were not true? Most times, we cannot. How do we show the manager made the statement hoping to cause harm to the employee? Again, it is rare that an employee would have that sort of evidence.

Many of the normal principles of defamation law apply to the workplace: the statement must be clear and unambiguous. It cannot be capable of two different meanings, one of which might be non-defamatory. Truth is always an absolute defense to defamation. But, for most people charged wrongly with theft, there is little anyone can do about that sort of termination. Defamation lawsuits in the workplace are just too difficult.

Defamation is that cause of action many people consider, but which is very difficult to prosecute. To show defamation, you have to show what the other person was thinking. You have to show a bad intent. In Hawbecker v. Hall, No. SA-14-CV-1010 (W.D. Tex.), the plaintiff did show defamation. It was a strange case. A woman in Colorado became convinced that Paul Hawbecker, who stayed with her and her daughter one night many years before, had molested her daughter and taken photos of the daughter. Michelle Marie Hall started a Facebook web page called, “Please help me stop a child molester!” Ms. Hall lives in Colorado and Mr. Hawbecker lives here in San Antonio. The mother messaged Hawbecker’s friends, family and others to warn them about him. She liked his employer, which apparently gave his employer access to the webpage.

The Plaintiff was a karate instructor. Customers started avoiding him. He was removed from teaching children and girls. Soon, he was fired. His romantic life suffered. So, the instructor sued Ms. Hall for defamation. Ms. Hall could not afford a lawyer, but she argued that a court in San Antonio would not have jursidiction over her. She lived in Colorado. The court disagreed. It looked at various factors, the essence of which was her attempts to contact persons in Texas on Facebook to tell them about Mr. Hawbecker supposedly molesting young girls. Those contacts gave the court jurisdiction.

The plaintiff moved for summary judgment, which the court granted. Ms. Hall’s story was contradictory. She claimed there was a Sheriff’s investigation, but there was not. She claimed to have pictures, but the provenance of the alleged picture was very dubious. It was not clear what the picture even represented, said the court. Worse for the defendant, Ms. Hall claimed she did not try to contact anyone on Facebook, but her FB posts showed different. In any lawsuit, credibility is critical. If you lose it, you are done. And, then the judge noted this: “the affidavit was replete with strange, conflicting and changing versions of events from Ms. Hall and her daughter.” The judge is saying the defendant’s story simply was not credible. So, the court granted summary judgment. It later held a trial just to determine damages.

It noted that accusing someone of molesting a child is probably the greatest harm a person can inflict, short of violence. Even though the court recognized that Ms. Hall had limited financial resources, it found general damages of $250,000. It also awarded $100,000 in punitive damages. The court found this sort of defamation was defamation per se. That is, it was so defamatory that no evidence of the harm of the slander was necessary. The harm was readily apparent, said the court. It turned Mr. Hawbecker’s life upside down and cost him at least one job. The defendant’s conduct, said the court, was deplorable and unacceptable. “In the age of social media, what we say on the Internet matters, and accusations of severe misconduct carry potentially severe consequences,” concluded the court. Yes, indeed.

Racial divisions are building in the last couple of years. White right activists are becoming more active. If we accuse someone supporting discriminatory policies of being a white supremacist, have we defamed that person? In Tennessee, Lisa Rung heard Robert Weidlich speak against LGBT persons at a school forum. Upon leaving the building, she saw Mr. Weidlich’s car and noted bumper stickers espousing a group known as the League of the South, considered by some to be a Neo-Confederate group of some sort, and a Confederate Battle flag. Mr. Rung posted a picture of the Weidlich car with the bumper stickers on her Facebook page and said, “The Fisty Family (a pejorative nickname for the Weidlich’s) are white supremacists.”

Mr. Weidlich sued Lisa Rung for defamation in state district court and won. The court awarded $12,000. Mr. Weidlich could point to a customer he lost, which cost him lost profits of $7,000. He has a car repair shop. Mr. Rung appealed. And, he claimed $5,000 in attorney’s fees. Ms. Rung appealed.

The Tennessee court of appeals looked carefully at Ms. Rung’s post. The court noted correctly that a statement of fact, stating for example, that Weidlich is a white supremacist would be defamatory. But, in this particular situation, she did not simply state he was a white supremacist. She also posted a picture of his bumper showing the stickers. In effect, said the court, Ms. Rung was expressing an opinion that Weidlich was a white supremacist. A statement of opinion is not a statement of fact. She was expressing her opinion and with the picture, she was inviting her Facebook friends to agree or not. See the decision here. So, the court found the statement was not defamatory, because she was simply expressing her opinion.

It is a remarkable decision. The law in most states is that a statement of opinion is not slanderous. But, a statement of fact would be defamatory.

Notice too that the court did not find that espousing an organization that might be racist and displaying a flag that might be used by some white supremacist groups did not necessarily indicate Weidlich was a white supremacist. The judge did not find that mere display of questionable symbols does not in itself support the accuracy of the accusation. Truth is always a defense to an accusation of defamation. But, the court did not find that display of problematic symbols would in itself show the alleged truth of the slanderous statement.

But, still, I would recommend most people refrain from accusing other persons of being racists or white supremacists. It is exceedingly difficult to truly know what is inside someone’s head, or their heart.

Many employers require drug tests for their employees. What happens when the drug testing laboratory commits an error regarding the test? Failing a drug test can result in termination. That is what happened in Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572 (Tex. 2017). The employer had a random drug testing program. Exxon Mobil employed third party laboratories to administer the test. The employee tested positive for illegal substances. Gilberto Rincones said he saw DISA, Inc. follow poor procedures in gathering the urine samples. He claims they made a mistake. DISA offered him the opportunity to re-test. He did not satisfy the requirements for a re-test. But, he took a test on his own through another source and tested negative for drugs. He did not complete the rehabilitation program offered by Exxon and was placed on inactive status. He later filed suit against Exxon and against DISA.

On appeal, the Texas Supreme Court found Exxon was not liable for the actions of DISA. The lab was not the agent of the employer, said the court. It had no contract with the lab. And, its requirements of the lab did not amount to control of the lab. The plaintiff sued the employer for discrimination, arguing that three non-Hispanic employees were allowed to continue working for Exxon even after testing positive for drugs. But, the court found those three employees were not good comparisons to Mr. Rincones, because they were management.

The plaintiff sued DISA for tortious interference with his employment and for negligence. But, the court looked at the date his lawsuit against the lab was due. The court found that Mr. Rincones’ right to file suit accrued when he first learned of the false positive result, not when Exxon placed him on active status. He learned about the false positive on April 14, 2008. He was placed on inactive stays in August, 2008. He then filed suit in August, 2010. So, he was too late by a few months, said the court.

The plaintiff also alleged defamation against Exxon. He claimed that because his employer terminated him for a false reason, he would be forced to provide that false reason to future employers. That sort of defamation is known as “self-publication.” The employee is forced to self-publish the defamatory statement. The Texas Supreme Court recognized that many Texas courts of appeals have accepted compelled self-publication in the past. Nevertheless, the Supreme Court refused to agree. The court made the remarkable claim that if it recognized self-publication, then that recognition would encourage employees to worsen the harm done them by the employer. That is, allowing the doctrine of self-publication would prevent the employee from mitigating his damages. The court is basically saying the employee might not look for work if he had to mention something damaging about himself. Such a notion is simply silly. Few, if any employees, have the option of not looking for work after termination. The Texas Supreme Court has continued its antipathy to plaintiffs. It also betrays a lack of connection to average workers who live from paycheck to paycheck. See the opinion here.

Not unlike former Pres. Bill Clinton, Pres. Trump has a reputation that will attract lawsuits. One such lawsuit filed by Summer Zervos, accuses the Celebrity Apprentice star of groping her when she was a contestant on his show. She accuses him of groping her and kissing her. She filed suit three days before Pres. Trump’s inauguration. She says he defamed her by denying her accusations. The President has claimed immunity. As some may recall, Pres. Clinton also tried to claim presidential immunity for a sexual harassment lawsuit, but he lost that claim. Ms. Zervos’ lawsuit, however is in state court. This time, the President is claiming immunity in state court, not in federal court. See Politico news report. We will see if that makes a difference.

I previously wrote about Ms. Zervos’ lawsuit here. Earlier, she offered to drop her lawsuit if the President would acknowledge the truth of her claims. Apparently, he decided not to take her up on her offer.

Coach Briles filed suit against Baylor University last December for defamation. See my post about that lawsuit here. In that lawsuit, he claimed Baylor said he knew about rapes and sexual assaults and did nothing about them. He claims din his lawsuit that was false, that he did not know about the sexual assaults. Well, now, he has dropped his lawsuit. He dropped his lawsuit just as a lawsuit filed by a former Athletic department assistant was getting started. Colin Shillinglaw filed his own suit against Baylor. Mr. Shillinglaw sued Baylor for claiming he had mis-handled the incidents involving the sexual assaults and rapes. In response to Mr. Shillinglaw’s lawsuit, Baylor provided evidence of Coach Briles’ knowledge of the incidents. Up to now, the administration has kept quiet about specific evidence, probably to protect the confidential nature of the claims.

For example, in response to a text about a football player exposing himself to a masseuse and asking for special favors, Coach Briles responded. “What kind of discipline . . . She a stripper?” The player, Tevin Elliot remained on the football squad and the incident was not reported to administration officials. Later, that same player would be accused of rape by two women in separate incidents. In 2013, a female athlete accused several players of gang raping her. She eventually told her female coach. When the female coach approached Coach Briles about it, he said, “These are some bad dudes. Why was she around those guys?” The response filed by the school argues that the football program was a “black hole” into which disappeared these allegations of brandishing a gun, drug use, domestic violence, indecent exposure, academic fraud, and physical assault.  See Chicago Tribune report.

It would be surprising if Coach Briles did not know about the actions of his players. Most coaches, perhaps all coaches are approached about what their players allegedly have done. And, really, the coaches know their players very well. So, Coach Briles’ suggestion that he knew his players were “bad dudes” reflects very poorly on him and the sort of players he recruited. The best defense to a defamation lawsuit is the simple truth. One can guess that Coach Briles filed his lawsuit as a bluff, hoping the administration would not reveal its information. He may have been trying to take advantage of the school’s difficult position. It must and is required to protect the confidential nature of these allegations. But, if so, he was wrong to assume the administration would not provide enough information to protect itself.

It was big news just a few months ago that Wells Fargo bank pressured its employees to engage in fraudulent sales tactics. Some employees were even issuing credit cards and setting up new bank accounts for its customers – without the customers’ permission. It was fraud. But, was it illegal? That distinction matters in a state like Texas. In Texas, there is no law protecting employees from employers engaging in fraud. But, there is a law against requiring an employee to engage in illegal activity. Alex Leal has filed suit against Wells Fargo. His lawsuit appears to lie right at the intersection of what is illegal and what is fraudulent but perhaps lawful. He was a branch manager at a branch on the West side of San Antonio. In his lawsuit, he says he was fired because he refused to go along with the sales tactics.

He also alleges defamation. I just wrote a post about defamation here and how hard it is to show defamation in the work place. To win, Mr. Leal must not just show management lied about him, he must show they knew it was a lie and they sought to cause him harm.

Mr. Leal is also suing for age discrimination, saying management preferred younger employees because they were more likely to go along with these fraudulent sales tactics. He says he was replaced by a 29 year old manager. See San Antonio Express News report.

Coach Art Briles has filed suit against Baylor University. He filed suit for libel, saying Baylor is spreading false allegations that he knew of sexual assaults and did not report them. See Dallas Morning News report. “Libel” refers to defaming someone verbally. Slander refers to defaming someone in writing. Baylor has been very careful about what it says about Coach Briles. There have been a few stories just recently that Coach Briles was aware of an alleged gang rape incident and did not report it to Baylor authorities. See SB nation report. Coach Briles claims that what Baylor is saying about him is keeping him from finding a new coaching position. He was just recently overlooked for an open head coaching job at the University of Houston, He had formerly coached at U of H before he started working for Baylor.

The sad truth is that defamation claims in Texas are very difficult for the plaintiff. What an employer says about an employee is accorded extra protection in Texas. The employer receives a qualified privilege when it discusses an employee or former employee. That means Coach Briles would have to show Baylor acted with actual malice when it said those things about the coach. To show malice, the plaintiff must show the employer knew or should have known what it said was false and that it did so with intent to cause harm. Simply showing an employer knew something was false, as opposed to simple mistake, is a very high obstacle. But, to also show the employer made that false statement with the intent to cause harm is huge. Unless Coach Briles has an inside witness who can attest that the Baylor spokesperson wanted to be sure Coach Briles never worked again, the coach will lose his defamation lawsuit.

That is why lawsuits alleging defamation in the work place are so rare. Who would ever have that sort of evidence? Many clients have asked me about suing their former employer for something the employer has said. Yes, many employers do defame former employees. But, unless the law changes, those sorts of lawsuits will remain exceedingly rare.

Implicit bias is a concept acquiring some attention. The theory is that as human we have subconscious biases. I have written about the theory before. See my prior post here. The U.S. Supreme Court recognized the theory in Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc., 135 S.Ct. 2517 (2015). The theory is we tend to filter out certain information based on subconscious biases.

The San Antonio Police Department apparently sees some value in the theory. They have asked Dr. Lorie Fridell, an expert on law enforcement and biases to provide the local law enforcement agency with training on how to deal with biases. In this day of police shootings, one has to consider the possibility that bias may play some role. Too many African-Americans and other minorities have reported being stopped by law enforcement for little or no reason.

The police union opposes the training, saying it starts from the standpoint of racial bias and that officers do not know what they are doing. See San Antonio Express News column by Brian Chasnoff. No, at least, not as I understand the concept. What implicit bias starts with is the standpoint that we are human, with human weaknesses.

In the legal business, lawsuits are governed by deadlines referred to as “statutes of limitation.”  A lawsuit must be filed within the applicable statute of limitation.  A suit based on personal injury must be filed within two years of the act complained of.  If the last day of the two year period falls on a weekend or a holiday, then the statute of limitations period is extended until the next business day.  A lawsuit based on the state statute which prohibits discrimination must be filed within two years.  This statute is known as the Texas Commission on Human Rights Act.

A suit based on defamation, libel or slander must be filed within one year of the act complained about.  A suit based on breach of an oral contract must be filed within two years of the alleged breach.  Suit on a written contract must be filed within four years of the alleged breach.

Of course, there are many exceptions to these statutes of limitation.  If you have questions, you should speak with a qualified lawyer.