California Civil Code section 47 offers some protection to employers and victims of sexual harassment from liability for defamation by an alleged a respondent after a complaint of sexual harassment has been made.1

Section 47 has long protected certain communications as privileged, making them immune from defamation lawsuits. One of these privileges applies to employers when they are contacted for job references about a current or former employee. This privilege protects “a communication concerning the job performance or qualifications of an applicant for employment, based upon credible evidence, made without malice, by a current or former employer of the applicant to, and upon request of, one whom the employer reasonably believes is a prospective employer of the applicant.” It also permits the employer to reveal whether the individual is eligible for rehire.

In 2019, section 47 was amended to clarify that:

• Employees who report harassment, based on credible evidence and without malice, are not liable for injury to the alleged harasser’s reputation;
• Communications between the employer and victims/witnesses are protected; and
• An employer is permitted to reveal in a job reference whether the individual is not eligible for rehire because the employer determined that they engaged in harassment.

1. Civil Code sec. 47(c)