Connecticut Supreme Court rejects cause of action for "compelled self-publication defamation"
In Cweklinsky v. Mobil Chemical Co., no. SC 16846 (01/06/04) full text available to Lawyers Weekly subscribers here, the Connecticut Supreme Court held that Connecticut law does not — and for valid public policy reasons should not — recognize a cause of action for defamation brought by an employee complaining that he or she was forced to repeat to a prospective employer a false and defamatory statement the prior employer made about reasons for termination.
The issue arises out of the traditional common-law requirement that defamation (libel and slander) actions require “publication” to a third-party by the defendant. That is, it is normally insufficient that the defendant defamed the plaintiff in a private conversation between the two parties — the defendant must have made the defamatory statement to someone else.
Some courts, however, have allowed employees to pursue defamation claims where they allege they were “compelled” — in order to honestly answer job interview questions — to repeat to prospective employers defamatory reasons for termination given them by their former employers.
The Connecticut high court declined to get on his bandwagon, noting first that most jurisdictions have either not yet recognized such an action or have expressly rejected it.
Legal researchers note: the case references a law review article on point and in a footnote lists those courts which have adopted such a cause of action.
The following public policy reasons were cited as supporting the Connecticut court’s rejection of the cause of action: 1) its acceptance would have a chilling effect on communication in the workplace, discouraging employers from stating their reasons for terminating employees and creating a perpetual “culture of silence”; 2) it would give employees too much control over the cause of action, discouraging them from mitigating damages and encouraging them to repeatedly republish the defamatory statements in order to increase damages; 3) it would allow manipulation of the statute of limitations, as each repetition would extend the deadline for filing suit; and 4) it would undermine the doctrine of employment at will.
The court said the fear of chilling communication was not merely hypothetical, as there was evidence that in states where the cause of action was recognized, employers were being advised to provide little or no information on reasons for termination to employees, in order to avoid potential liability.
The decision certainly makes some sense. But it does leave an employee terminated for what they believe to be a false reason a difficult choice.
They can outright lie about it (e.g. stating they quit voluntarily or were laid off due to lack of work), knowing that if this dishonesty is discovered it may destroy their chances of being hired.
Or they can admit the termination and attempt to explain it away, knowing that despite their best efforts this may also destroy their chances of being hired.
It seems the better calculated risk (though morally repugnant and difficult for persons with good character for honesty) is to lie (refusing to repeat what the employee believes is false anyway). If the prospective employer then checks references and hears the defamatory reason from the prior employer, resulting in a decision not to hire, now there is a defamatory publication, resulting damages, and basis for a lawsuit. If not, the opportunity to get hired is not impacted.
Regardless of the state of the law in a given jurisdiction on this issue, there are good reasons to eschew a policy of complete silence on reasons for termination. Such silence causes employees to suspect the worst, and sets them up to be able to claim whatever reason is later given was a pretext for some form of discrimination (else why was it not given originally?) On the other hand, obviously one’s words should be chosen very carefully when communicating a termination, usually put in writing and carefully scripted if communicated orally. One should also avoid saying too much.
