Labor and Employment Alert: Texas Supreme Court Rejects a Cause of Action for Compelled Self-Defamation
June 26, 2017
A defamation claim generally requires “publication” of a false and defamatory statement of fact to a third party. Publication occurs when the defamatory statement is communicated to a third person who can understand its defamatory import and who actually does so understand. Under the self-defamation theory, a former employee’s disclosure of a defamatory statement to a prospective employer can show “publication” because he or she is effectively compelled to publish the statement when asked why he or she left former employment.
In May 2017, and in a case of first impression, the Texas Supreme Court recently held that compelled self-defamation is not recognized under Texas law as either an element of a defamation claim or as an independent cause of action.
In Exxon Mobil Corp. v. Gilberto Rincones, Rincones was a technician working for an Exxon contractor and was terminated after testing positive for marijuana following a random drug test performed by a third-party administrator approved by Exxon. He claimed that he did not use illegal drugs, that the sample was not actually his, and that there had been “questionable testing procedures.” He then offered another sample that had been tested by a private doctor, which was negative for marijuana (though the screening threshold was substantially higher than the one his employer had used). His employer refused to accept these results and Rincones did not complete a rehabilitation program as required to be reinstated. Rincones sued alleging, among other things, that the defendants had tortiously compelled self-defamation a result of having to report to future employers that he had been terminated for failing a drug test. The Texas Supreme Court rejected the self-defamation claim and “expressly decline[d] to recognize a theory of compelled self-defamation in Texas.”
First, the Court reiterated that a plaintiff cannot recover for injuries as a result a publication if the plaintiff consented to, authorized, invited or procured that publication. The Court next explained that recognizing compelled self-defamation “would risk discouraging plaintiffs from mitigating damages to their own reputations.” Otherwise, any employee who disagrees with his or her employer’s termination reason could unilaterally create an actionable tort against the employer, and the availability of increased damages might encourage an employee to publish a defamatory statement when that could have been avoided.
The Court also “fear[ed] that accepting the compelled self-defamation doctrine would unacceptably impinge on the at-will employment doctrine” and found that the claim is “incompatible with Texas’s at-will employment system.” This is because a claim of compelled self-defamation would require employers to conduct investigations and make accurate findings before taking any action against an employee or risk being sued – and employers have no duty to conduct such an investigation under Texas law.
Finally, “recognizing compelled self-defamation could also stifle workplace communication by chilling honest evaluation and communication about employee performance, as employers strive to protect themselves from defamation claims by adopting policies of providing only ‘name, rank and serial number’ references.”
Texas now joins with an emerging majority of state courts that have considered the issue and rejected compelled self-defamation, including those in Connecticut, Massachusetts, Hawaii, Tennessee, Iowa, Pennsylvania, and New York. Moreover, Colorado and Minnesota have limited the claim by statute.