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.

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.

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.

Defamation refers to uspeaking 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 charge an employer with defamation, the defamation must be made in the course and scope of his/her 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.  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.

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.  

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.  

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.