The California Legislature recently passed Assembly Bill 933, a bill expanding privileged speech to expressly include communications regarding factual information pertaining to incidents of sexual assault, harassment or discrimination.

Currently, California statutes list specific types of oral and written communications that are privileged and therefore cannot be the basis for a claim of defamation against the speaker.  Privileged categories include, among other things, statements made in pursuit of a lawsuit or made in the proper discharge of an official duty.  Communications not falling within one of the privileged categories can provide the basis of a defamation claim against the speaker. With AB 933, the California Legislature has added California Civil Code § 47.1, making a communication made “without malice, regarding an incident of sexual assault, harassment, or discrimination” a privileged communication, provided that the individual making the statement had a reasonable basis to file a complaint for sexual assault, harassment, or discrimination, regardless of whether a complaint was filed or not.  AB 933 goes on to provide a prevailing defendant not only the right to recover all reasonable attorney fees and costs, but also treble damages for any harm caused to them as a result of the defamation action, as well as punitive damages.

Through AB 933, the California Legislature is taking steps to make legitimate complaints of sexual harassment and assault easier by removing the threat of retaliation against the victim in the form of baseless defamation claims.  At the same time, it discourages bad faith aggressors from bringing frivolous defamation claims by providing a successful defendant with significant damages options.  Employers should be prepared to communicate this change in the law in the event an employee indicates they would like to report an incident, but are fearful of retaliation.

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