Defamation is essentially a claim for injury to one's reputation resulting from a false written or oral statement.

California's Civil Code 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.

However, victims of sexual harassment and employers have been subjected to defamation lawsuits by the harasser after a complaint of sexual harassment has been made. The law clarifies 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 he/she engaged in sexual harassment.

1. Civil Code sec. 47(c)